Whether the Department was justified in refusing access to a feasibility study for a youth centre in a specified location on the basis that section 29(1) applied

25 March 2021

Background

In a request dated 1 October 2020, the applicant sought access to a copy of a feasibility study (the report) for a youth centre in a specified location in Donegal.  In a decision dated 9 October 2020, the Department refused the request under section 29(1) of the FOI Act. The applicant sought an internal review of that decision following which the Department affirmed its refusal of the request under section 29(1). On 11 November 2020, the applicant sought a review by this Office of the Department’s decision.

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 applicant’s comments in his application for review, to the submissions made by the Department in support of its decision, and to the submission of Údarás na Gaeltachta on the matter.  I have also examined the record at issue. I have decided to conclude this review by way of a formal, binding decision.

Scope of the Review

This review is concerned solely with whether the Department was justified in refusing, under section 29(1) of the Act, the applicant’s request for a copy of feasibility study (the report) for a youth centre in a specified location.

Analysis and Findings

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 that both requirements have been met.

A deliberative process may be described as a thinking process which informs decision making in FOI bodies. It involves the gathering of information from a variety of sources and weighing or considering carefully all of the information and facts obtained with a view to making a decision or reflecting upon the reasons for or against a particular choice. Thus, it 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 report at issue is a feasibility study concerning the development of youth services and facilities in the specified area. It was commissioned by Údarás na Gaeltachta (ÚnaG) at the request of the Department following a number of funding enquiries made in connection with the provision of youth services in the area. ÚnaG provided the Department with a copy of the draft report in April 2020. The Department provided this Office with copies of correspondence with ÚnaG in November 2020 in which ÚnaG confirmed that the report remains a draft report. According to the Department, the draft reports entails weighing and consideration of information and facts from a number of organisations. It also said that consultation is ongoing between ÚnaG and the Department of Children, Equality, Disability, Integration and Youth and other relevant organisations in relation to some of the issues raised in the report. It says that deliberations are ongoing both on the part of the Department and ÚnaG. 

I accept that the report contains matter relating to a deliberative process and that section 29(1)(a) applies. Accordingly, I must consider whether release of the report would be contrary to the public interest as required by section 29(1)(b). For release to be contrary to the public interest, this Office would generally expect the body to identify a specific harm to the public interest flowing from release. Furthermore, a mere assertion of harm without supporting evidence is not sufficient to satisfy the requirement that granting access to the record would be contrary to the public interest.

The Department argued that releasing the report in its draft format at this time would not be deemed best practice and may lead to additional issues of having to manage some of the unrealistic expectations proposed.  It said recommendations made in the report would involve a change of policy on its part and it argued that releasing this information prior to making a decision would set a precedent and be considered a breach of trust with those stakeholders who engaged fully with the process. It said the release of the report in its current form could be misleading to the relevant stakeholders in relation to the end conclusion of the report, and the Department’s proposed direction. It said that having consulted with ÚnaG, it concluded that issuing the report in its draft form would undermine the ongoing consultation and that its publication at this stage would give an unbalanced opinion on the project.

In its submission to this Office, ÚnaG said that while the report is nearing conclusion, it is not as yet in finalised form and has a number of speculative recommendations that are to be worked through as part of the draft process, pending input from the Department and other agencies. It argued that the release of the report, in draft form, could be misleading to relevant third-party stakeholders, given that the initial draft conclusions and recommendations of the report are subject to change.

The applicant argued that reports such as the one at issue in this case are often not finalised for a long period of time and that the fact that the report is in draft form is not a suitable reason for withholding it. He also argued that any report properly commissioned and carried out should not contain sufficient inaccuracies to substantially mislead the public/stakeholders. He argued that the function of the FOI Act would be defeated if only finalised reports were subject to FOI.

While the Act clearly envisages that there will be cases in which disclosure of the details of an FOI body’s deliberations before a decision based on those deliberations has been made would be contrary to the public interest, that is not to say that such disclosure is always, as a matter of principle, contrary to the public interest. I do not accept the Department’s arguments that it would be contrary to the public interest to release a draft report on the ground that release would not be deemed best practice. The fact that it may not be best practice does not, of itself, mean that it would be contrary to the public interest to release a draft report. If I was to accept such an argument, it seems to me that no draft report could ever be released. This is clearly not what section 29 is intended to achieve.

Nor do I accept that the release of a draft report in circumstances where a change of policy may be required to implement its recommendations and where a decision on that policy had not been made would set a precedent. Each record must be considered on its particular merits.

I note the Department’s argument that release may lead to additional issues of having to manage unrealistic expectations. However, it did not identify any specific information in the record at issue whose release might cause such unrealistic expectations, nor did it explain why managing such expectations would be contrary to the public interest. The mere fact that the release of a record containing matter relating to a deliberative process might give rise to further debate on the matter does not, of itself, mean that release is contrary to the public interest. Furthermore, this Office has previously found that the possibility of the public misunderstanding information is, generally speaking, not a good cause for refusing access to the records of public bodies. In Case 98078 - Mr Martin Wall and the Department of Health and Children, the then Commissioner considered that, apart from anything else, such an argument seems to be based on an assumption, which he did not accept, that public bodies are incapable of explaining their records to the public and are unable to present information to the public in a way which will allow any objective observer to draw accurate and balanced conclusions.

The Department also argued that the release of the record would be considered a breach of trust with those stakeholders who engaged fully with the process. This argument appears to be based on an assumption that the parties engaged in the process on the understanding that their engagements would be treated as confidential and, presumably, that those parties would be unlikely to engage in similar deliberative processes in the future. If so, the Department has presented no evidence to support that position, nor it is apparent from the contents of the record that this was the case.

In conclusion, therefore, I find that the Department has not shown that the release of the report would be contrary to the public interest.  I find, therefore, that section 29(1) does not apply.

Nevertheless, I do not consider it appropriate to simply direct the release of the report without having given the Department an opportunity to consider wider issues regarding its contents. The report contains many references to third parties. There are a number of provisions in the Act that serve to protect the interest of third parties, including commercially sensitive information (section 36) and personal information (section 37). While I make no finding on whether such exemptions might apply to any of the information in the record, 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 fact that it contains references to third parties.

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.

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 report on a youth centre in a specified location.  I find that section 29(1) does not apply to the record. In light of the fact that the record contains many references to third parties and that the Department has not considered whether release would affect the interests of those parties, I direct the Department to conduct a fresh decision making process on the request.

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