Whether the Department was justified in refusing access to a report by the Commission for Aviation Regulation regarding the crosswind runway at Dublin Airport

29 March 2021

Background

In a request dated 15 July 2020, the applicant sought access to a copy of the analysis conducted by the Commission for Aviation Regulation (the CAR) in 2018 on the impact of closure of Runway 16-34 (the crosswind runway) in Dublin Airport. The Department’s decision of 7 August 2020 refused the request under section 29(1) of the FOI Act (deliberative processes). The applicant sought an internal review on 18 August 2020. The Department’s internal review decision of 7 September 2020 affirmed its refusal of the request under section 29(1) of the FOI Act. It also relied on section 30(1)(c) (negotiation positions or procedures for negotiations). On 2 December 2020, 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 had regard to the contents of the record concerned and to the provisions of the FOI Act.

Scope of the Review

The scope of this review is confined to whether the Department was justified in refusing the applicant’s request under sections 29(1) and 30(1)(c) of the FOI Act.

Preliminary Matters

Under sections 13(2)(d) and 21(5)(c) of the FOI Act, where an FOI body decides to refuse to grant a request, the notification of the decision shall specify:

• the reasons for the refusal;
• any provisions of the FOI Act pursuant to which the request is refused;
• the findings on any material issues relevant to the decision; and
• particulars of any matter relating to the public interest taken into consideration for the purposes of the decision.

When inviting the Department’s submissions in this case, this Office’s Investigator noted that its decisions do not set out findings on any material issues relevant to the decision or particulars of any matter relating to the public interest taken into consideration for the purposes of the decision. She also noted that they do not address section 29(2) of the FOI Act. She invited the Department to provide all information relevant to its claims for exemption for the report and provided it with links to relevant material on the Commissioner’s website. She also set out a number of key questions that she said, at a minimum, were required to be addressed.

It is noted that, in The Minister for Communications, Energy and Natural Resources and the Information Commissioner & Ors, [2020] IESC 5 (the eNet judgment), the Supreme Court said that “it is the FOI body that must explain and justify a conclusion that the records are exempt by reference to the relevant provisions of the Act, and equally, it is the FOI body that must explain why the public interest does not justify release in the public interest.” I also note that, in the Supreme Court case of Sheedy v the Information Commissioner ([2005] 2 I.L.R.M. 374, [2005] 2 IR 272, [2005] IESC 35) Kearns, J. made it clear that a general prediction without any supporting evidence is not sufficient to satisfy the requirement that access to the record could reasonably be expected to result in the outcome envisaged. He stated that “[a] mere assertion of an expectation of [prejudice] could never constitute sufficient evidence in this regard”.

Finally, section 13(4) of the FOI Act provides that in deciding whether to grant or refuse a request, any reason that the requester gives for that request, or any opinion by the body as to what are the reasons for the request, shall be disregarded.

Findings

The record

Section 25(3) requires this Office to take all reasonable precautions to prevent the disclosure of exempt material in the performance of its functions. I am therefore required to limit the level of detail I can give in describing the withheld record. It contains details regarding how runways are generally selected for landing/take-off in particular weather conditions, usage of the crosswind runway, previous regulatory issues in relation to the crosswind runway (including details contained in published CAR Determinations), wind profiles of Dublin Airport and certain other major airports, the possible costs to airlines and passengers generally of decommissioning the crosswind runway and other issues that the CAR considers relevant to any possible decisions concerning the crosswind runway.

Section 29(1) – deliberative processes

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.

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)

The Department says that the record sought is subject to a deliberative process. It refers to Action 4.5.3 of the National Aviation Policy 2015, which committed the Department to commission a high-level strategic capacity review of State Airports. Insofar as Dublin Airport is concerned, that review’s terms of reference required the examination of a timeframe for the development of new terminal capacity and an assessment of the merits of a new terminal being operated independently. Amongst other issues, the review report noted the need to carry out further work to enable the Government to make an early strategic decision on the retention of the crosswind runway, which would substantially affect the available development options in terms of their cost and relative advantages. The Minister then asked the CAR to analyse the usage and benefits of the crosswind runway and the implications of its possible closure. The CAR’s report was received on 11 January 2019. The Minister committed to carefully consider all of the issues raised in this process ahead of making recommendations to Government. As at the time of its submission to this Office, these recommendations to Government have yet to be made.

The Department says that the CAR report is an important constituent part of the strategic capacity review of State Airports, as committed to in the National Aviation Policy. It says that the report is subject to review by it prior to seeking a Government decision in relation to the matter and that it will prepare a Memorandum for Government at the appropriate time.

I accept that the processes of making recommendations regarding further development at Dublin Airport and related matters are deliberative in nature. I also accept that the requested record relates to such deliberative processes. 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)

When seeking the Department’s submissions, the Investigator asked the Department to describe the current stage of any deliberative processes to which the report relates. She said that, if such processes have not concluded, the Department’s submission should outline what remains to be considered and by which FOI body, and say when the matter is expected to conclude.

The Investigator also asked the Department to explain how the release at this point in time of the report, which on its face is concerned with the sole topic of the crosswind runway, could affect the deliberative processes concerned. The Investigator also drew the Department’s attention to a particular section in the report and asked it to comment on a particular argument that could be made in light of the details concerned.

The Department says that while the report is a critical constituent part of the process to inform a decision of Government, it is not in itself the decision. It says that “in considering the content of the report (and in the context of the appeal by the applicant)”, its view is that information contained therein could be seen as information leading to a decision and therefore the release of the report at this point in time is premature and could potentially undermine the decision making process. It says that the broader community interests are best served by non-release of the record at this point in time. It also says that the record may be released or published at some future date once Government has made a decision on the matter. I note that the Department did not answer the Investigator’s key questions.

It is unclear to me what the Department means by referring to the “context of the appeal by the applicant”. It may be just a general remark but as noted above, I cannot have regard to any reasons that the applicant may have, or is believed to have, for making the request. Furthermore, it is not relevant whether the report might be made public at some point in the future. Neither are any past commitments that the Department gave to publish the report.

Noting the Department’s position as set out above, I have no reason to consider that release of the record would be contrary to the public interest by reason of the fact that the applicant would thereby become aware of a significant decision that the Department proposes to make.

While there is nothing in the exemption itself that 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 of the requested record at this point in time is contrary to the public interest. In general, I accept that the Department has to consider the most appropriate recommendation to make to its Minister in relation to the strategic capacity review of State Airports including in relation to any developments at Dublin Airport. Also generally speaking, I accept that FOI 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 the record. In this regard, it is relevant that release of records under FOI is equivalent to their publication to the world at large.

The Department’s position is that it must review the report and related material before any recommendation can ultimately be made on the matter. However, it is not necessarily the case that it is contrary to the public interest to release all records relating to deliberative processes that have yet to conclude or because the records do not of themselves comprise any final decision that may yet be made by Government on a matter. This seems to be the Department’s primary basis for withholding the record concerned. It does not explain, whether by reference to the key questions asked by the Investigator or otherwise, how release of this particular record could potentially undermine the deliberative process within any FOI body. For instance, it does not identify particular details in the report that might impact on any aspect of the deliberative processes if released, or explain how such an impact could or would arise. Neither does it identify the particular broader community interests that it considers are best served by withholding the report at this point in time or explain how those interests could be affected by release of the report. Having regard to the content of the report and the Department’s submission, I am not satisfied that section 29(1)(b) applies. I find that the record is not exempt under section 29(1) of the FOI Act. There is no need for me to consider section 29(2) in the circumstances.

Section 30(1)(c) – negotiation positions and plans

Section 30(1)(c) provides that a head may refuse to grant an FOI request if access to the record concerned could, in the opinion of the head, reasonably be expected to disclose positions taken, or to be taken, or plans, procedures, criteria or instructions used or followed, or to be used or followed, for the purpose of any negotiations carried on or being, or to be, carried on by or on behalf of the Government or an FOI body. Section 30(2) provides that subsection (1) shall not apply in relation to a case in which in the opinion of the head concerned, the public interest would, on balance, be better served by granting than by refusing to grant the FOI request concerned.

Section 30(1)(c) is designed to protect positions taken for the purpose of any negotiation carried on by or on behalf of the Government or an FOI body. It is important to note that this exemption does not contain a harm test (unlike sections 30(1)(a) and 30(1)(b) of the FOI Act). It is sufficient that access to the record concerned could reasonably be expected to disclose such negotiation positions, plans etc. There is no requirement to take a view on the consequences of the disclosure of those positions or that disclosure would have an adverse effect on conduct by the Government or the FOI body of its negotiations. However, this matter may be relevant to the public interest test.

As noted earlier, the Department’s internal review decision does not explain its basis for relying on section 30(1)(c). In inviting its submissions, the Investigator said that the report, on its face, does not seem concerned with, or to relate to, any negotiations. She asked the Department to explain why it felt that it discloses an FOI body’s or the Government’s negotiating positions or plans etc. for such negotiations. She also asked it to describe the negotiations concerned, their current stage and how they could be affected by disclosure of the relevant negotiating positions/plans. The Department’s submission does not address section 30(1)(c) at all or, as already noted, answer the Investigator’s questions.

Having regard to the content of the report, and in the absence of any argument from the Department, I see no basis for finding that its disclosure could reasonably be expected to disclose positions taken or to be taken or plans, etc. to be used or followed, for the purpose of any negotiations carried on or being, or to be, carried on by or on behalf of the Government or an FOI body. I find that section 30(1)(c) does not apply. There is no need for me to consider the public interest test in the circumstances.

Finally, this Office’s Investigator asked the Department to supply her with contact details of any third parties whose interests it felt may be affected by release of the record. She also asked it if the report had previously been supplied to any third parties. The Department did not answer these questions. In such circumstances and having examined the report, it is not apparent to me that any third parties might be affected by its release.

Decision

Having carried out a review under section 22(2) of the FOI Act, I hereby annul the Department’s refusal of the record and I direct that access be granted to it.

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.

            

Deirdre McGoldrick

Senior Investigator