Whether the Department was justified in its decision to refuse access to a draft report entitled "Kilmakilloge Harbour Study 2017" under section 29(1), 30(1)(b) and 36(1)(b) of the FOI Act

26 November 2019

Background

On 8 April 2018, the applicant sought access to all documentation for the last five years on the review of licencing and aquaculture in Kilmakilloge Harbour on Kenmare Bay (the harbour). Following a discussion with the Department in relation to the refinement of his request, he agreed to refine his request to the Kilmakilloge Carrying Capacity Study which was presented to him in Bantry by Bord Iascaigh Mhara (BIM) on 22 March 2018.

On 3 May 2018, the Department refused the request under section 29(1) of the FOI Act. The applicant sought an internal review of that decision on 24 May 2018, following which the Department affirmed its refusal of the record under section 29 and also cited section 30(1)(b) in support of refusal. It stated that the report was a draft report and that it was engaged in a deliberative process of considering options for aquaculture licensing in the harbour.

On 26 September 2018, the applicant sought a review by this Office of the Department's decision. In conducting this review, I have had regard to the correspondence between the applicant and the Department as described above and to the correspondence between this Office and both the applicant and the Department on the matter. I have also had regard to the nature and content of the relevant record. 

Scope of Review

This review is concerned solely with whether the Department was justified in refusing access to the draft report entitled "Kilmakilloge Harbour Study 2017" under sections 29(1) and 30(1)(b) of the FOI Act.   

Preliminary Matter

It is important to note at the outset that 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. Certain developments have taken place regarding the aquaculture licensing process during the review which, in my view, are of relevance to the question of whether or not the Department is justified in continuing to refuse access to the record at issue. While the delay in finalising the review is regrettable, I must, nevertheless, have regard to the current position regarding the licencing process.

Analysis and Findings

Section 29 - Deliberative Processes

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.

In its internal review decision on the request, the Department provided the following background information relating to the aquaculture licensing process:

All applications for aquaculture licenses are considered in accordance with the provisions of the Fisheries (Amendment) Act 1997, the 1933 Foreshore Act and the applicable EU legislation. The licensing process involves consultation with a wide range of scientific and technical advisers as well as various statutory consultees.

Regulation 10 of the Aquaculture (Licence Application) Regulations 1998 (the Regulations) requires certain bodies to be notified of a licence application. The legislation also provides for a period of public consultation. The Regulations require applicants to give public notice of applications and also provide for the right to make submissions concerning applications. In addition to the legislation, the Department also adheres to a wide range of regulatory requirements and other legislation which impact on the licensing process such as the Habitats Appropriate Assessment process. If necessary, the Department commissions other studies such as the Carrying Capacity study in this instance, to further assist in the evaluation of aquaculture licence applications.

The Department stated that it was engaged in the deliberative process of considering the options for aquaculture licences in the harbour and it argued that the release of the record at issue at that stage could contaminate the overall licensing process and could affect the fairness of the overall licensing of aquaculture in the harbour

During the course of the review, the Department said that that the record at issue was a working draft of a report that was prepared by BIM and that a final report had not yet been received. It said that further significant information had since come to light which was not considered in the draft report (additional aquaculture licenses, for example) and would be included in the final report by BIM.

The Department further stated that the record at issue, when finalised, would be released at the public consultation phase provided for in the Regulations. It said that this was to ensure fairness in procedures and to allow for members of the public, including applicants for aquaculture licenses, view the record at the same time during the public consultation phase.  It stated its concern that premature release of the report, prior to the statutory public consultation process, would significantly undermine the ongoing analysis of the issues concerned and may give an unbalanced picture.  Overall, the Department’s position was that release of the report would be contrary to the public interest as it would undermine the statutory process which was underway. 

In the meantime, the Department proceeded with the public consultation process in relation to the licence applications for the harbour. Following a request for its updated position in relation to the record, the Department stated that the report in question had not been finalised; that the public consultation phase had been completed; and that the report had not been made available as part of the public consultation process. It could not say when or if the report would be made available.

While the report at issue remains a draft, the Department stated that there are a number of issues it wishes to discuss with BIM in relation to the report. It stated that it had been decided to proceed with dealing with the licence applications without reference to the report for a number of reasons. It argued that while the draft report is not now relevant to the licensing process, its association with the ongoing licensing process would cause confusion and possibly hinder ongoing analysis of the issues concerned.

It seems to me that while the Department may have had valid reasons for refusing to release a copy of the draft report in advance of the public consultation process, i.e. in order to protect the integrity of the consultation process, this is no longer a consideration as the public consultation process has since been completed.

In essence, its argument for continuing to withhold the record is based on a concern that its release could cause confusion relating to the licensing process and might hinder its ongoing analysis of the issues concerned.

I do not accept that the possibility that the release of the record might cause confusion is a sufficient ground for arguing that release would be contrary to the public interest. It seems to me that the Department should be in a position to clearly explain what issues it has with the draft report and its relevance to the licensing process. Furthermore, the Department has not explained how release might otherwise hinder its ongoing analysis of the issues concerned. In the circumstances, I find that the Department has not justified its refusal of the record on the ground that release would be contrary to the public interest. I find, therefore, that section 29(1) does not apply.

Section 30(1)(b) – Functions and Negotiations

Section 30(1)(b) of the FOI Act is a discretionary exemption that provides for the refusal of a request if the body considers that access to the record concerned could reasonably be expected to have a significant, adverse effect on the performance by an FOI body of any of its functions relating to management (including industrial relations and management of its staff).  For section 30(1)(b) to apply, there must be a reasonable expectation that release of the records at issue could have a significant, adverse effect on the performance of FOI body’s management functions including industrial relations and staff management.

The Department’s position was that release of the report would adversely impact on its ability to carry out its functions in relation to the determination of the aquaculture licence applications for the harbour.  In the circumstances, whereby the Department has proceeded with the aquaculture licensing process without reference to the report, I cannot see how release of the report at this time can have any impact on the process or that release of the report could give rise to a significant, adverse effect on the performance by the Department of its functions in this regard.  I find that section 30(1)(b) does not apply to the record.

Section 36(1)(b) – Commercial Sensitivity

While not originally cited as a ground for refusing access to the record, in recent correspondence with this Office the Department stated that as it contains information that is commercially sensitive, it would not normally be released under the FOI Act.

Section 36(1)(b) protects 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(3) provides that section 36(1) does not apply where the public interest would, on balance, be better served by granting than by refusing to grant the request.

The record at issue contains information relating to named and identifiable aquaculture operators in the harbour, the specific areas in which they operate, details about their licences and other detailed information about the individual aquaculture operations in the harbour and recommendations in relation to future activities in the harbour. While the identity of the licence holders and some of the other information in the report is a matter of public record and is available, other details in the report are not available and were gathered for the purposes of the report.

The Department has not explained why it considered section 36(1)(b) to apply, nor did it identify any specific information in the record it considered to be commercially sensitive. On this point, it is noteworthy that section 18 of the Act provides for the release of a record with the redaction of exempt information, provided the copy provided is not misleading.  In my view, much of the record at issue does not relate to third parties and even where it does, the commercially sensitivity of much of that information is not immediately apparent. Furthermore, the Department did not address the public interest as required by section 36(3). In the circumstances, I find that the Department has not justified refusal of the record under section 36(1).

In certain cases, this failure to explain why a record should be withheld would give this Office cause to find that the record or information for which the exemption was claimed should be released. However, in the circumstances of this case, I must also be mindful of the effect release could have on the relevant third parties to whom the information relates. It is not appropriate that this Office be a first instance decision maker as to what information is commercially sensitive. 

In conclusion, therefore, I am satisfied that the most appropriate course of action to take is to annul the decision of the Department to refuse access to the record sought and to direct it to undertake a fresh decision making process on the request, having regard to the existence of certain commercial information relating to third parties contained within the record and to the requirements of section 36 and also section 38 of the Act.

If the applicant is dissatisfied with the fresh decision, he will be entitled to apply for an internal review of that decision and ultimately, may apply for a further review by this Office. In the event that he deems it necessary to apply for a further review, this Office undertakes to prioritise the review given the unfortunate delays that arose in the course of this review.

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 access to the draft report entitled "Kilmakilloge Harbour Study 2017".  I find that sections 29(1) and 30(1)(b) do not apply to the record. I also find that the Department has not properly considered the applicability of section 36 to the record. I direct the Department to undertake a fresh decision making process in respect of the record.

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