Case number: 180142

Whether the Department was justified, under sections 28 and 29 of the FOI Act, in refusing access to records relating to affordable housing schemes

28/08/2018


Background


On 28 November 2017 the applicant sought access to correspondence dating from January 2016 between the Department and both the Department of Finance (DOF) and the Department of Public Expenditure & Reform (DPER) relating to affordable housing schemes. The applicant also sought records relating to proposed affordable housing schemes that had been rejected in the same time period. 
In its decision of 12 January, the Department identified 45 records as coming within the scope of the applicant's request. It refused access to all 45 records under section 29 of the FOI Act, relating to deliberations of public bodies and also cited section 28, which concerns records relating to Government meetings, in respect of four of the records (records 1-4). The applicant sought an internal review of that decision, following which the Department affirmed its original decision. On 10 April 2018 the applicant sought a review by this Office of the Department's decision.


I have decided to bring this review to a close by way of a formal binding decision. In conducting the review I have had regard to the Department's correspondence with the applicant as outlined above and to communications between this Office and both the Department and the applicant on the matter. I have also had regard to the contents of the records at issue.


Scope of Review


This review is concerned solely with whether the Department was justified in its refusal to grant access to the relevant records under sections 28 and 29 of the FOI Act.


Preliminary Matter


Section 22(12)(b) of the FOI Act provides that a decision to refuse to grant a request is presumed not to have been justified unless the public body "shows to the satisfaction of the Commissioner that the decision was justified". This means that the onus is on the Department to satisfy the Commissioner that its decision to refuse the request was justified.


Analysis and Findings


Section 28


The Department sought to rely on section 28(1)(a) of the Act to refuse access to records 1-4. That section allows a body to refuse a request if the record concerned has been, or is proposed to be, submitted to the Government for its consideration by a Minister of the Government or the Attorney General and was created for that purpose. There is no public interest balancing test to be applied in section 28. However, a record to which section 28(1) applies is releasable in certain circumstances set out in section 28(3) of the FOI Act. 


Section 28(3) provides that section 28(1) does not apply to a record if it contains factual information relating to a decision of the Government that has been published to the general public or if the record relates to a decision of the Government that was made more than 5 years before receipt of the FOI request. 


For section 28(1)(a) to apply, a record must fulfil three criteria, as follows:
the record has been (or is/was proposed to be) submitted to the Government for its consideration,
it has been (or is/was proposed to be) submitted by a Minister of the Government or the Attorney General and
it was created for the purpose of submission to the Government for its consideration
For the purposes of section 28, a record is defined as including a preliminary or other draft of the whole or part of the material contained in the record.
In its submission to this Office the Department argued that records 1-4 are exempt under section 28(1)(a) as they relate to a memorandum for Government that was created solely for the purposes of consideration by the Government at a forthcoming meeting.
Record 1 comprises an email from the Department to DOF indicating that the Minister intended to bring a memorandum to Government on matters related to proposals relating to private investment and affordable rental policy in the near future, and incorporates an earlier email from the Department to members of the Technical Working Group, including officials from DOF and DPER, seeking their observations on a number of documents due to be attached to a submission being prepared for the Minister on those matters. I find that the record does not satisfy any of the requirements of section 28(1) and that the section does not, therefore, apply.
Record 2 comprises an exchange of emails between the Department and DPER containing DPER observations in respect of the documents to be attached to the submission for the Minister and specific suggested amendments to the draft memorandum for Government that had been forwarded to it for comments.


In Case 99450 the then Commissioner found that submissions made by Departments in response to an invitation by another Department to provide observations on a draft memorandum for Government constitute "a preliminary or other draft of the whole or part of the material contained in the record", in light of the requirement that memorandums should incorporate the observations of other Ministers or Department supplied on foot of the circulated draft. I therefore find that section 28(1)(a) applies to the first part of the email of 12 January 2016 from DPER, comprising DPER comments on the draft memorandum, and that none of the provisions of section 28(3) apply.
I am not satisfied, however, that DPER comments in the remainder of that email are exempt as they relate specifically to the documents to be attached to the submission to the Minister, as opposed to the draft memorandum, nor do I find that any other parts of record 2 are exempt, as they do not meet the requirements of section 28(1)(a).


Record 3 comprises a draft Memorandum for Government. I am satisfied that the record fulfils the criteria for section 28(1)(a) to apply. I am also satisfied that none of the provisions of section 28(3) apply and I find that the Department was therefore justified in refusing access under section 28(1)(a).
Record 4 is an email exchange between the Department and DPER subsequent to the Government meeting. I find that this record does not satisfy the requirements of section 28(1)(a) and that the section does not apply.


In conclusion, I find that the Department was justified in refusing access to the first part of record 2 (page 1 and the first two paragraphs of page 2 of the email of 12 January 2016) and all of record 3 under section 28(1)(a) but that it was not justified in refusing access to record 1, the remainder of record 2, or record 4 under that section.


Section 29


Section 29(1) of the FOI Act provides that an FOI body may refuse to grant a request if the record concerned contains matter relating to the deliberative processes of an FOI body and the body considers that granting 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 public bodies to satisfy this Office that both requirements are met.
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. While not exhaustive, section 29(1) provides that matters relating to deliberative processes includes 'opinions, advice, recommendations, and the results of consultations, considered by the body, the head of the body, or a member of the body or the staff of the body for the purpose of those processes'. An FOI body relying on this exemption should identify both the deliberative process(es) 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.
While there is nothing in the exemption itself which requires the deliberative process to be ongoing, the question of whether the process is ongoing or at an end may be relevant. Furthermore, section 29 specifically requires consideration of whether the requester would, by the release of the record(s), become aware of a significant decision that the an FOI body proposes to make. 
The public interest test contained in section 29(1) 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 granting access to the record would be contrary to the public interest.


The records at issue concern proposals for improving private investment in social housing and for the development of affordable purchase and rental schemes. It is noted that in the course of the development of the affordable rental scheme within the Department there was a fundamental shift in the policy approach, from a subsidy-based approach to a cost rental model.
In its submission to this Office, the Department acknowledged that the Minister made a high level announcement in January 2018 with regard to his plans for affordable housing. It argued, however, that at that stage the detail as to how both cost rental and affordable purchase schemes would operate remained part of the deliberative process and remains to be finalised. In relation to the affordable purchase scheme, the Department stated that the Minister signed and commenced the relevant provisions of the Housing (Miscellaneous Provisions) Act 2009, the effect of which is to place the new scheme for affordable purchase on a statutory footing with effect from 18 June 2018. It stated that it is currently preparing associate guidance and regulations to assist local authorities in implementing the statutory provisions in a clear and consistent manner and while the Act is quite prescriptive, there are still aspects around eligibility criteria and the allocation process yet to be agreed.
In relation to the affordable rental scheme, the Department has indicated that work is still underway to develop detailed modelling and financial appraisals for the proposed pilot site to assess its suitability for a cost rental development. It stated that this work is being taken forward by a multi-disciplinary team encompassing representatives of the Department, Dublin City Council and the National Development Finance Agency and the Department has indicated that this work will be completed shortly. Separately further work is underway with Dún Laoghaire-Rathdown County Council to examine another pilot cost rental site.   


The Department argued that as work is still progressing on both the affordable purchase scheme as well as the cost rental pilot scheme, the deliberative processes in relation to both schemes are ongoing and as such the provisions of section 29(1) apply. Having reviewed the relevant records I accept that they contain matters relating to the deliberative processes of an FOI body and that the first requirement for section 29(1) to apply is met. While it is clear that the overall parameters of both schemes have been agreed, it is also clear that a number of key operational matters remain to be decided and as such I accept that there are ongoing deliberations in regard to both the affordable purchase scheme as well as the cost rental scheme.     


With regard to the proposals to increase private investment in the provision of social housing, the Department has not made any substantive arguments in its submission in relation to this matter. However from a review of the records it would appear that while proposals which had emanated from what was known as the Social Housing Investment Clearing House Group had at one point been considered by the Department for implementation, following further consultation with other Government Departments concerns were raised in relation to whether such proposals could be considered 'off-balance sheet' in respect of wider Government finances. This appears to have led to further consideration within the Department and resulted in a revised scheme, known as the Enhanced Long-term Social Housing Leasing Scheme, being developed.  This scheme was launched in January 2018. 
Having considered the matter I also accept that the elaboration of this Scheme was also a deliberative process within the meaning of section 29, albeit one which appears to have concluded at this stage. In reaching this decision I am particularly influenced by the fact that the records demonstrate that the Department, both internally and in consultation with other Government Departments, was clearly engaged in a process of weighing-up competing options in relation to the elaboration of this matter. 
However, this is not the end of the matter as I must now proceed to consider whether the release of the records relating to the various schemes would be contrary to the public interest. The public interest test 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. In the case of section 29, the public body must be of the opinion that releasing the records would be contrary to, or 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.
It is also noteworthy that under section 11(3) of the FOI Act, in performing any function under the Act, public bodies must have regard to
the need to achieve greater openness in its activities and to promote adherence by them to the principle of transparency in government and public affairs,
the need to strengthen the accountability and improve the quality of decision making of public bodies, and
the need to inform scrutiny, discussion, comment and review by the public of the activities of public bodies and facilitate more effective participation by the public in consultations relating to the role, responsibilities and performance of public bodies.


The applicant argued that as the relevant records relate to the possible use of public funds for such affordable housing schemes that there is a strong public interest to support release of these records. She also argued that there is a strong public interest in openness around public policy decisions in the area of housing. The applicant referred to commitments made in July 2016 at the launch of the Rebuilding Ireland Initiative where reference was made to the fact that the affordable rental scheme was 'at an advanced state of development' and would be 'finalised by end Q3 2016'. She argued that there is significant public interest in establishing why this target has not been met. In addition the applicant highlighted the length of time that these schemes have been under consideration in the Department and has submitted that public bodies cannot indefinitely 'hide behind endless deliberation to avoid scrutiny'. Finally the applicant has highlighted the fact that part of her request relates to schemes which have been rejected and as such she has argued that such schemes cannot be said to be subject to ongoing deliberation. 


In its submission to this Office, the Department stated that while there is a public interest in scrutinising the development of public policy on housing, particularly as a critical area of public concern, there is a counterbalancing public interest in favour of allowing the development of policy to a point where it is agreed by Government. In relation to the cost rental scheme, the Department stated that while policy had been developed to a certain point at the time of receipt of the applicant's request, certain details remain under consideration. It argued that the release of the records at issue would impair future decisions to be made, given that much of the data and analyses on eligibility etc. carried out for the development of the initial affordable rental model could be used in the development of the cost rental model.
In essence, the Department has argued that the premature release of the information contained in the records, where deliberations are ongoing, would impair the integrity and viability of the decision making process. However, it has not explained how the release of the information at issue would give rise to the harm identified.


As I have outlined above, for the granting of a request to be contrary to the public interest, I would expect the public body to be in a position to identify a specific harm to the public interest flowing from release and to explain how that harm might arise. 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. Any arguments against release under section 29 should be substantiated and supported by the facts of the case.


I accept that there is a public interest in favour of allowing the development of policy to a point where it is agreed by Government. However, the fact that a deliberative process exists and is ongoing does not, of itself, mean that the exemption automatically applies. This Office does not accept that the purpose of section 29 is to protect the deliberative process until its completion. In Case 98127 the then Commissioner stated that if the purpose of the exemption was to protect matter relating to the deliberative process until that process had been completed, it would have been a simple matter for the Oireachtas to have enacted a specific provision along these lines.


In the case of Westwood Club v The Information Commissioner [2014] IEHC 375, when considering the applicability of the exemption set out in section 36, which is concerned with the protection of commercially sensitive information, the High Court held that it is not sufficient for a party relying on the exemption to merely restate the provisions of the section, list the documents and say that they are commercially sensitive. Similarly, I take the view that it is not sufficient in this case for the Department to merely assert that the release of the records at issue would impair the integrity and viability of the decision making process without explaining how this harm might arise.
As I explained above in the Preliminary Matters section of this decision, section 22(12)(b) of the Act places the onus on the Department of satisfying this Office that its decision to refuse the request was justified. It is worth noting that Ms Connery of this Office drew the Department's attention to the provisions of section 22(12)(b) in her email of 22 May 2018 when she invited the Department to make a submission in support of its refusal of the request. She also drew its attention to the Guidance Notes published by this Office in respect of the exemption provisions relied on. Having regard to the provisions of section 22(12)(b), I find that the Department has not justified its decision to refuse the request under section 29(1).


For the sake of completeness, I should add that in determining whether or not the grant of a request would be contrary to the public interest, the public body must consider whether granting the request would be contrary to the public interest by reason of the fact that the requester concerned would thereby become aware of a significant decision that the body proposes to make. The Department made no such argument in this case.


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.  I direct release of all records identified by the Department as coming within the scope of the applicant's request apart from part of record 2 (page 1 and the first two paragraphs of page 2 of the email of 12 January 2016) and all of record 3.

 

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.


Stephen Rafferty
Senior Investigator