Whether the Department was justified, under section 28(1)(b) of the AFOI Act, in refusing access to a decision of the Government relating to the 2017 An Post Stamp Programme on the basis of section 28 of the FOI Act

6 August 2020

Background

In a request dated 1 October 2019, the applicant sought access to the report from the Philatelic Advisory Committee and the subsequent Government decision relating to the inclusion of a postage stamp commemorating the 50th anniversary of the death of Che Guevara in the 2017 An Post Stamp Programme.

On 31 October 2019, the Department issued its decision.  It identified two records falling within the scope of the applicant’s request.  The first record (Record 1) was the report of the Philatelic Advisory Committee in July 2015 which examined proposals for the 2017 An Post Stamp Programme and made recommendations thereon.  The second record (Record 2) was the subsequent decision taken by the Government in relation to the 2017 Stamp Programme. 

In its decision the Department refused access to both records under section 28 of the Act.  It argued that as the report of the Philatelic Advisory Committee had formed part of the documentation submitted to Government prior to its decision that it, and the subsequent Government decision, fell within the exclusion set out in section 28.

The applicant sought an internal review of that decision. On 16 December 2019, the Department issued its internal review decision. It decided to release Record 1 to the applicant, with the redaction of some information under section 37 of the FOI Act on the ground that it was personal information.  It affirmed the decision to refuse access to Record 2 under section 28. 

In a letter received on 18 June 2020, the applicant sought a review by this Office of the Department’s decision to the refuse access to Record 2.

I have now completed my review in accordance with section 22(2) of the FOI Act.  In carrying out my review, I have had regard to the correspondence between the applicant and the Department as set out above and to the correspondence between this Office and both the Department and the applicant on the matter.  I have also had regard to the contents of the record concerned.  I have decided to conclude this review by way of a formal, binding decision.

Scope of the Review

The scope of this review is concerned solely with whether the Department was justified in refusing access to the Government decision relating to the 2017 An Post stamp programme under section 28 of the FOI Act.

Analysis and Findings

The Philatelic Advisory Committee is an independent committee which is tasked with examining proposals for inclusion in future stamp programmes of An Post and, following its deliberations, in making recommendations to Government. Proposals for inclusion can be received from members of the public, various bodies and Government Departments. In July 2015 the Committee met to examine proposals for the 2017 Stamp Programme. Its proposals were subsequently examined at the Government meeting on 15 December 2015.

Section 28(1)(b) provides for the refusal of a request where the record sought is a record of the Government, other than a record by which a decision of the Government is published to the general public by or on behalf of the Government.

Record 2 is a record of the Government which provides for the approval of the 2017 Stamp Programme proposals. It is not a record by which a decision of the Government was published to the general public by or on behalf of the Government.  I find, therefore, that section 28(1)(b) applies to this record.

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

Section 2 of the FOI Act provides that "factual information" includes information of a statistical, financial, econometric or empirical nature, together with any analysis thereof. The Commissioner considers that factual information would generally include, for example, material presented to provide a factual background to the central topic in a record. The Commissioner also takes the view that factual information is distinguishable from information in the form of proposal, opinion or recommendation.

Having examined the record concerned I find that it does not include factual information within the meaning of section 2 of the Act and therefore section 28(3)(a) does not apply.  With regard to section 28(3)(b), as the Government decision is dated 15 December 2015 the provisions of that sub-section cannot apply. 

Accordingly, I find that section 28 applies to Record 2 and the Department was justified in refusing access to it. However, I note that it remains open to the applicant to make a fresh request under the FOI Act for this record once the five-year period has elapsed.

Decision

Having carried out a review under section 22(2) of the FOI Act, I hereby affirm the decision of the Department to refuse access, under section 28(1)(b), to the Government decision relating to the 2017 An Post stamp programme.

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