Whether the Department was justified in refusing access to certain records of communications between the Department and Bord na gCon relating to the sale of lands at Limerick Dog Track

30 June 2020

Background

In a FOI request dated 10 February 2020, the applicant sought access to all records dating between 15 September 2018 and 15 June 2019 concerning communications between the Department and Bord na gCon and any interested parties, including political representations, concerning the sale of the lands at the dog track, Ennis Road, Limerick. The Department’s decision of 27 February 2020 refused the request under sections 29(1) (deliberative process), 30(1)(b) (functions relating to management), 30(1)(c) (negotiations of an FOI body), 36(1)(c) (negotiations of a third party) and 37(1) (personal information) of the FOI Act.

The applicant sought an internal review on 10 March 2020. He referred to a particular email that he said an individual in Bord na gCon (Mr A) had sent to a named individual. He said that he wanted this and all emails and wanted to know who had communicated a certain decision. He referred to a comment in a text that he said he had received from Mr A. He said that he wanted the name and position of the person within the Department who gave Mr A the details concerned and how this information was relayed to Mr A.

The Department’s internal review decision of 31 March 2020 affirmed its decision on the request. In relation to the particular matters raised by the applicant in his internal review application, the Department referred him to record 9 (an email chain) on its schedule of records and to other details provided to him by the Department in the meantime.

On 21 April 2020, the applicant applied to this Office for a review of the Department’s “conclusion and decision”. He said that he would like answers to his questions. In his contacts with this Office, he reiterates that he is trying to establish the name of the person within the Department who gave Mr A the details contained in his text and how this communication was made. He says that he wants to know who Mr A communicated with on two particular dates because in his view the conversation concerned formed the basis of Mr A’s text messages.

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 had regard to the contents of the records concerned and to the provisions of the FOI Act.

Scope of the Review

The scope of this review is confined to whether the Department’s decision to withhold the 12 records covered by the applicant’s request was justified under the provisions of the FOI Act.

This Office has no power under the FOI Act to consider other matters such as the handling of the proposed sale or to establish what contacts individuals have had with others in relation to this matter. Neither does this Office in reviewing a decision on an access request have power to direct the Department to answer the applicant’s questions about the sale or about the information that he says he was given.

Findings

In making my decision, I cannot have regard to the applicant’s reasons for making his request. Furthermore, while I have taken account of all of his arguments, I must be circumspect in describing them so as not to disclose his identity.

Finally, while I am required to give reasons for my decisions, 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. Accordingly, the extent to which I can describe the records in my analysis and reasoning is very limited.

Section 29

Section 29 is a discretionary exemption, which provides that an FOI request may be refused if (a) it contains matter relating to the deliberative processes of an FOI body (including opinions, advice, recommendations, and the results of consultations), and (b) the granting of the request would, in the opinion of the head of the FOI body, be contrary to the public interest and, without prejudice to the generality of paragraph (b), the head shall, in determining whether to grant or refuse to grant the request, consider whether the grant thereof 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 requirements of sections 29(1)(a) and (b) are independent and the fact that the first is met carries no presumption that the second is also met.

A deliberative process 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 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. To avail of section 29, the public body must be of the opinion that releasing the records would be against the public interest.

In the Commissioner’s view, this exemption tends more strongly towards release of records. Generally speaking, it would be contrary to the public interest to release a record where a specific harm to the public interest flows from release. While there is nothing in the section 29 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 FOI body proposes to make.

Section 29(1)(a)

It is a matter of public record that Bord na gCon purchased the lands at issue in 2005 and that the lands have been for sale for a number of years.

The Department refers to section 8.22 of the Code of Practice for the Governance of State Bodies 2016, which concerns the acquisition or disposal of assets. The Minister for Agriculture, Food and the Marine and the Minister for Public Expenditure and Reform must give advance approval for the sale. I note from the Department’s schedule of records that the matter of approval has been ongoing since late 2018/early 2019.

The Department says that its Minister has not yet made any decision in relation to the sale and that the deliberative process is still ongoing. It says that officials should be in a position to ask probing questions, carefully consider all relevant factors and take all steps during their deliberations to ensure that public monies are adequately protected and accounted for, prior to a decision being made on the matter. It says that disclosure of the records at this point in time would undermine these processes, including by disclosing the positions of FOI bodies that are relevant to negotiations concerning the potential sale.

I accept that the processes further to which the Department (and as also required, the Department of Public Expenditure and Reform) is considering the records, so that recommendations may be made to the relevant Ministers regarding their approval of the sale, are deliberative in nature. I find that the first requirement of section 29(1), as set out at section 29(1)(a) of the FOI Act, has been met in this case.

Section 29(1)(b)

While there is nothing in section 29 itself which requires the deliberative process to be ongoing, the question of whether it is ongoing or not may be relevant to the issue of the public interest. What I must consider is whether release at this point in time is contrary to the public interest.

On the matter of the public interest, I have had regard to the comments of the Supreme Court in The Governors and Guardians of the Hospital for the Relief of Poor Lying-In Women v The Information Commissioner[2011] 1 IR 729, [2011] IESC 26 known as “The Rotunda Judgment” . It is noted that any public interest considered by the Commissioner must be a true public interest recognised by means of a well-known and established policy, adopted by the Oireachtas, or by law. Although these comments were made in relation to another provision of the FOI Act, I consider them to be relevant to the consideration of public interest tests generally. It is also relevant that the release of records under FOI is accepted generally to be the same as publishing them to the world at large.

The applicant says that the land was bought with taxpayer monies. He refers to various facts and events concerning the proposed sale, including what he says Mr A stated to him. His position is, essentially, that it is in the public interest for details about the proposed sale, and how it is progressing, to be placed in the public domain.

It is not appropriate for me to direct the release of records to the world at large on the basis that the applicant believes that a particular decision on the sale should be made or that a decision should have been made by now. Neither is it appropriate for me to make such a direction on the basis of the particular events that the applicant has described to this Office.

The FOI Act itself recognises a public interest in ensuring that FOI bodies are open about and can be held accountable for how they carry out their functions. It seems to me that there is a public interest in this case in disclosing matters to do with the initial purchase of the lands. However, it is also relevant that there is much in the public domain already about this matter, which weakens the weight of this public interest.

Granting the request would disclose the Department’s analysis and recommendations concerning the sale of State-owned lands, which in turn impacts on the Exchequer. It would also enable insight into the potential overall value for money of the sale. Thus, the disclosure of the records would serve the public interest in ensuring the Department’s accountability in this regard. This is entitled to significant weight in the circumstances.

As noted above, the sales process has been ongoing for well over a year. However, it is often the case that the process of considering and evaluating relevant matters before any final decision can be made can be slow. Such processes are often delayed by various factors some of which the Department set out in its submissions in relation to the various matters to be deliberated upon.  I do not consider that the public interest in favour of granting the applicant’s request is entitled to additional weight solely because of the delay in the making of a decision on the sale.

I accept that State bodies need appropriate time and space to engage in a pre-decision deliberative process without undue or unreasonable interference that might arise from the release of records. Furthermore, having regard to their contents, I accept that the records also contain details of the negotiation positions of various FOI bodies in relation to the potential sale of the land. It is reasonable to accept that disclosure of these details to the world at large would disadvantage the State in any further negotiations that may be necessary. These outcomes would have implications for the public purse and the actual overall value for money that the sale will achieve for the State. In my view, any action that would might result in such outcomes would not serve the public interest.

Having considered the matter carefully, it seems to me that disclosure of the records at this point in time would be contrary to the public interest. I find that the second requirement of section 29(1), as set out at section 29(1)(b) of the FOI Act, has been met in this case. I find that the Department is justified in withholding the records at this point in time under section 29(1) of the FOI Act.

Section 29(2) - The Exceptions to Section 29(1)

Section 29(2) provides that the exemption does not apply if and in so far as the record contains 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 am satisfied that none of the exceptions in section 29(2) arise in this case.

Having examined the records in the context of section 29(2)(b) in particular, it seems to me that some parts of them could be described as factual information. Section 18(1) of the FOI Act provides for the release of non-exempt material from an otherwise exempt record “if it is practicable to do so”. However, section 18(2) provides that section 18(1) does not apply if the resulting copy would be misleading. I am of the view that it would not be practicable to attempt to extract any factual information from the records while at the same time ensuring that the redacted copies are not misleading under section 18 of the Act. In this regard, it is relevant that the factual information is in many instances inextricably linked to other types of information such as analysis, opinions, etc. Furthermore, in circumstances where a decision has yet to be made on the matter, I see no reason for section 29(c) to apply to the records. 

In the circumstances, there is no need for me to consider the application of the other exemptions relied on by the Department in this case.

Decision

Having carried out a review under section 22(2) of the FOI Act, I hereby affirm the Department’s refusal of the records under section 29(1) 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