Whether the Department was justified in its decision to refuse access under section 29 of the FOI Act to records created during a consultation process undertaken by the Low Pay Commission in relation to the National Minimum Wage (Protection of Employee Tips) Bill 2017

21 November 2018

Background

On 13 July 2018, the applicant made an FOI request to the Department for the following records:

• All correspondence (emails, letters, meetings, phone calls etc.) between the Low Pay Commission and all other organisations and departments on the subject of the Commission-™s consultation process on tips and gratuities created between 10 March 2018 and 10 July 2018;
• A copy of the targeted list of various employee and employer representative bodies which the Commission contacted on 19 June 2018 on the subject of tipping.

On 29 August 2018, the Department refused access to the relevant records under section 29(1) of the FOI Act which serves to protect records relating to the deliberative processes of FOI bodies. The applicant requested an internal review of that decision and on 12 September 2018, the Department affirmed its original decision.

On 19 September 2018, the applicant applied to this Office for a review of the Department-™s decision. Both the applicant and the Department made submissions during the course of this review.

I note that the Low Pay Commission is an FOI Body in its own right but that the applicant's request was processed by the Department whose staff appear to be involved in the work of the Commission.

I have decided to conclude this review by way of a formal binding decision. In conducting this review, I have had regard to correspondence between the applicant and the Department, to correspondence between the Department and this Office, to correspondence between the applicant and this Office, to the contents of the records at issue and to the provisions of the FOI Act 2014.

Scope of Review

The scope of this review is confined to whether the Department was justified in its decision to refuse access to the requested records under section 29(1) of the FOI Act. 

Preliminary Matters 

At the outset, it is relevant to note a number of preliminary matters. Section 13(4) of the FOI Act provides that the actual or perceived reasons for a request must generally be disregarded by the decision maker, including the Information Commissioner, (except insofar as such reasons are relevant to consideration of the public interest or other provisions of the Act).

Although I am obliged to give reasons for my decision, section 25(3) requires all reasonable precautions to be taken in the course of a review to prevent disclosure of information contained in an exempt record. This means that the description which I can give of the records at issue and the material that I can refer to in the analysis is limited.

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

Analysis and Findings
 

Section 29 Deliberations of FOI Bodies

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

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

When considering section 29(1)(a), this Office considers that a deliberative process may be described as a thinking process which informs decision making in FOI bodies. It involves the gathering of information from a variety of sources and weighing or considering carefully all of the information and facts obtained with a view to making a decision or reflecting upon the reasons for or against a particular choice. Thus, it involves the consideration of various matters with a view to making a decision on a particular matter. It would, for example, include some weighing up or evaluation of competing options or the consideration of proposals or courses of action.

The Department states that the Low Pay Commission (the Commission) was established under the National Minimum Wage (Low Pay Commission) Act 2015 and its remit is to make recommendations regarding the national minimum wage. It states that the 2015 Act also allows the Commission to examine and report its views and recommendations on other matters, related generally to the functions of the Commission under the Act, as may be requested of it from time to time. It states that in March 2017, the Minister for Employment Affairs and Social Protection requested that the Commission examine the National Minimum Wage (Protection of Employee Tips) Bill 2017 and undertake a pre-legislative consultation process with interested stakeholders. It states that the requested records relate to the Commission-™s on-going deliberations in relation to the 2017 Bill.

Records 5, 21-25 and 44-45 contain notes and other details of meetings at which options in relation to the 2017 Bill were discussed by the Commission and other Government Agencies. Records 6 and 46 contain submissions provided by representative bodies outlining their views in relation to the 2017 Bill. I am satisfied that these records involve the gathering of information from a variety of sources and weighing of the information obtained with a view to reflecting upon the reasons for or against a particular choice. I find that records 5-6, 21-25 and 44-46 meet the requirements of section 29(1)(a) of the Act. I consider whether these records meet the requirements of section 29(1)(b) of the Act below.

The remaining records 1-4, 7-20, 26-43 and 47-50 contain a letter requesting submissions sent by the Commission to various representative bodies together with a follow-up email reminding bodies of the request. The remaining records also include requests by certain bodies for further time to make submissions. I am not satisfied that these records include any weighing up or evaluation of information such as is envisaged by "deliberative processes". I find, therefore, that they do not meet the requirements of section 29(1)(a) of the Act.

I note, however, that records 1-3, 14, 39-42 and 47-50 contain names, email addresses and telephone numbers of private individuals i.e. those not employed by FOI bodies. Having regard to the definition of personal information contained in the Act, I am satisfied that these details are exempt under section 37(1) of the Act. I am also satisfied that the public interest that the request should be granted does not outweigh the public interest that the right to privacy of these individuals should be upheld. I find that the names, email addresses and telephone numbers of private individuals contained in the above records are exempt under section 37(1) of the Act.

Section 29(1)(b) The Public Interest

In addition to showing that a record contains matter relating to the deliberative processes of an FOI body, an FOI body relying on section 29 for its refusal to grant access to a record must also show that release of the record would be contrary to the public interest. The public interest test at section 29(1)(b) is a stronger public interest test than the public interest test in many other sections of the Act (which require that, on balance, the public interest would be better served by granting than by refusing to grant the request). The public interest test in section 29(1)(b) requires the FOI body to show that the granting of the request would be contrary to the public interest.

The Commissioner has found that the Act clearly envisaged that there will be cases in which disclosure of the details of an FOI body-™s deliberations - whether before or, in some cases, after a decision based on those deliberations has been made - would be against the public interest. However, this was not to say that such disclosure is always, as a matter of principle, against the public interest. Any arguments against release under section 29 of the Act should be substantiated and supported by the facts of the case. It is important that the FOI body shows to the satisfaction of the Commissioner how granting access to the particular record(s) would be contrary to the public interest, e.g. by identifying a specific harm to the public interest flowing from release.

The applicant states that he has a keen interest in the 2017 Bill. He states that, at a meeting with the Commission on 10 April 2018, he was assured that he would be given an opportunity to make a submission in relation to the Bill. He states that on 10 July 2018, after receiving no correspondence from the Commission, he enquired when the Commission would request submissions and was informed that a targeted call for submissions had issued on 19 June 2018. The applicant states that he was frustrated by this as he would have expected that he would have been on the targeted list. The applicant says he was informed that he could make a submission by the end of July; however, if he had not made enquiries the deadline would have come and gone.

The applicant states that he requested a copy of the 'targeted list' of bodies contacted by the Commission as he had a concern that if the targeted list was imbalanced and if it contained more groups on either the employer side or the employee side, then the final report may also be imbalanced. The applicant says he was informed by the Commission that he would not be able to receive a copy of the targeted list. The applicant argues that as a publically funded body, the Commission should have nothing to hide from a request for transparency with regard to its operational procedures and such transparency is an essential element in demanding accountability from such an organisation.

The Department states that the Commission is an independent and non-political statutory body. It argues that for the work of the Commission to proceed optimally, it is vitally important that it can conduct its business without having to disclose information pertaining to its deliberative processes in advance of the publication of its reports. It argues that it is clearly in the public interest that the Commission can conduct its work without undue interference from any interested stakeholders. It also argues that it is not in the public interest for the Commission to make this information available while deliberations are ongoing as this could potentially undermine future calls for submissions.  Finally, the Department states that it is the practice of the Commission to make all submissions received publically available after it completes a report and makes a recommendation to the Government. It states that the Commission will submit its report to the Government by the end of November 2018.

I accept that there is a public interest in openness and accountability in relation to Commission's role in carrying out consultations. In my view, the public interest in openness and transparency as to the manner in which the Commission carried out its functions is met to a significant extent by the release of many of the records in this review. I also consider that the public interest in openness and transparency is served by the fact that all submissions received will be published when the deliberations are finalised. I note that the records do not contain a targeted list of bodies contacted by the Commission. However, the release of the requests for submissions issued to various bodies by the Commission will go some way towards allowing the applicant to consider the consultation process and whether it was balanced. I consider the Department to have justified its view that release of records 5-6, 21-25 and 44-46 at this point would be contrary to the public interest. I find that the requirements of section 29(1)(b) of the FOI Act have been met in relation to these records.

Section 29(2)

Section 29(2) provides that the exemption does not apply if and in so far as the records contain any or all of the following: (a) matter such as rules, procedures, guidelines, interpretations and precedents used, or intended to be used, by an FOI body for the purpose of making decisions, determinations or recommendations; (b) factual information; (c) the reasons for the making of a decision by an FOI body; (d) a report of an investigation or analysis of the performance, efficiency or effectiveness of an FOI body in relation to the functions generally or a particular function of the body; (e) a report, study or analysis of a scientific or technical expert relating to the subject of his or her expertise or a report containing opinions or advice of such an expert and not being a report used or commissioned for the purposes of a decision of an FOI body made pursuant to any enactment or scheme. I find that none of the exceptions at section 29(2) apply to records 5-6, 21-25 and 44-46.

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 find that section 29(1) of the Act applies to records 5-6, 21-25 and 44-46 as these records contain information in relation to the deliberative processes of the Low Pay Commission and granting access to the records would be contrary to the public interest. I find that section 37(1) applies to the names, email addresses and telephone numbers of private individuals contained in records 1-3, 14, 39-42 and 47-50 as release of these details would disclose personal information of individuals other than the applicant and the public interest would, on balance, be better served by refusing the release of these details. I annul the Department-™s decision to refuse access to the remaining records or parts of records and I direct their release to the applicant subject to the redaction of personal information as outlined above.

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.

Elizabeth Dolan
Senior Investigator