Whether the Department was justified in refusing to grant access to Memorandums for Government in relation to the Social Welfare, Pensions and Civil registration Act 2018 under section 28 of the FOI Act

20 February 2020

Background

In an FOI request dated 6 September 2019, the applicant sought access to any Memorandums for Government in relation to the Social Welfare, Pensions and Civil Registration Act 2018 (the 2018 Act). The Department’s decision of 9 October 2019 withheld three records under section 28 of the FOI Act, on the grounds that they contain matters relating to meetings of the Government. On 10 October 2019, the applicant sought an internal review of the Department’s decision. The Department’s internal review decision of 18 October 2019 affirmed its refusal of the request. On 23 October 2019, the applicant applied to this Office for a review of the Department’s decision.

I have now completed my review in accordance with section 22(2) of the FOI Act and I have decided to conclude it by way of a formal, binding decision. In carrying out my review, I have had regard to the above exchanges and correspondence between this Office, the Department and the applicant. I have also examined the records at issue and had regard to the provisions of the FOI Act.

Scope of the Review

The scope of the review is confined to whether the Department’s decision to refuse the applicant’s request was justified under the provisions of the FOI Act.

Findings

The applicant refers to comments made in Dáil and Seanad debates in 2014 about the reform of the FOI Act. He also refers to the Long Title of the Act and to comments made about it by Mr Justice Fennelly in the Supreme Court case of Sheedy v The Information Commissioner [2005] 2 IR 272 regarding how the Act gives extensive rights to the public. He further refers to the requirements of section 11 for FOI bodies to give reasonable assistance to requesters in making FOI requests and for FOI bodies to have regard to matters such as the need to achieve greater openness in the activities of FOI bodies when they are carrying out any functions under the FOI Act. He says that he has been advised that the FOI Act must be treated as facilitative, that there must be compelling grounds to refuse requests and that there are no such grounds set out in the Department’s decisions. He says that because section 28(1)(a) is a discretionary exemption, the Department is not required to refuse his request.

The Department says that the withheld records are drafts and final Memorandums for Government in relation to the 2018 Act. Having examined the records, I accept that this is the case.

The Department’s internal review decision says that section 28(1) of the FOI Act applies on the basis that the requested records include records submitted to Government for its consideration and records containing information (including advice) for a member of the Government for use by him or her solely for the purpose of the transaction of business of the Government at a meeting of the Government. It quotes the various provisions of section 28(1), including section 28(1)(a), which seems to me to be the most appropriate provision to consider in this case.

Section 28(1)(a) of the FOI Act provides that an FOI body may refuse to grant an FOI 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. It is not a harm-based exemption such that release of a record would lead to particular consequences specified in the particular provision. There is no ‘public interest override’ in this exemption.

I also note that section 28(6) of the FOI Act provides that a “record” includes a preliminary or other draft of the whole or part of the material contained in the record. Previous decisions by the Information Commissioner have accepted that section 19(1)(a) applies to records including Memorandums for Government and preliminary or draft versions of the whole or part of such documents.

I take no issue generally with the applicant’s setting out of the objectives of the FOI Act. While the Act does indeed enable requesters to seek access to information in the possession of public bodies, it also provides for “necessary exceptions to that right”. In this regard, the applicant is correct in saying that section 28(1) is discretionary rather than mandatory i.e. that the FOI body is not required to apply the exemption. However, while I note the provisions of section 11, in this case where there is no provision for a public interest balancing test it does not permit me to go further than examining whether the terms of the exemption are met.

Section 28(1)(a) does not contain a harm test. Rather, it is concerned with the status of a record, i.e. its submission to the Government by a Minister or the Attorney General for consideration and its creation for that purpose. The applicant’s request specifically seeks Memorandums for Government in relation to the 2018 Act and as set out above I am satisfied that the records comprise drafts and a final version of such records. I find that the Department’s decision to use its discretion to find that the records are exempt under section 28(1)(a) of the FOI Act is justified.

Section 28(3)(a) provides that subsection (1) does not apply to a record referred to in that subsection if and in so far as it contains factual information relating to a decision of the Government that has been published to the general public. The Department has provided this Office with a copy of its press release summarising the key aspects of the Government decision in relation to the 2018 Act. Having examined the records, it seems to me that some very small parts of them could be described as factual information. However, it seems to me that any such factual information is inextricably linked to proposal type information and other exempt material in the records and that no part of the records falls to be released under section 28(3)(a). Section 28(3)(b) is concerned with records relating to a Government decision that was made more than five years before the FOI request was received by the body. I am satisfied that it is not relevant in this case.

In the circumstances, there is no need for me to consider the other provisions of section 28(1). For the sake of completeness, I can say that I am not satisfied that section 28(2)(a) applies in this case, as claimed by the Department. Section 28(2)(a) requires the refusal of details comprising the whole or part of a statement made at a meeting of the Government or details revealing the substance of such a statement or details from which the substance of such a statement may be inferred. The draft and submitted Memorandums do not of themselves contain or reveal details of comments made at any Government meeting. Neither does it seem to me that their contents enable one to infer what was said at any such meeting.

Decision

Having carried out a review under section 22(2) of the FOI Act, I hereby affirm the Department's refusal of the applicant’s request under section 28(1)(a) of the FOI Act.

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