Whether GRETB was justified in its decision to refuse access to part of a report on the Schools Reconfiguration for Diversity Process under sections 29(1) or 30(1)(c) of the FOI Act

13 August 2021

Background

On 10 November 2020, the applicant made an FOI request to GRETB for:

• Outcomes of the initial Identification phase of the Schools Reconfiguration for Diversity Process involving GRETB, in which it and other ETBs were required to undertake an initial pilot area within their functional areas where they considered there may be unmet oncoming demand for a multi-/non-denominational school and arranging for surveys of parents of pre-school children in these areas;
• Correspondence between GRETB and the Department of Education or ETBI regarding the outcomes of this process to date.

On 7 December 2020, GRETB issued its decision. It granted access to one record containing email correspondence and it refused access to the remaining records, including a Report on the Schools Reconfiguration for Diversity Process, under sections 29 (deliberations of FOI bodies) and 30 (Functions and Negotiations of FOI bodies) of the FOI Act. The applicant requested an internal review of GRETB's decision. On 22 December 2020, GRETB affirmed its original decision. On 23 December 2020, the applicant sought a review by this Office of GRETB’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 communications between this Office and the parties as outlined above. I have also had regard to the contents of the records at issue and to the provisions of the FOI Act. I have decided to conclude this review by way of a formal, binding decision.

Scope of the Review

In light of the content of the records at issue, this Office notified the Department of Education and Skills (the Department), of the review and invited it to make a submission. The Department submitted that the records are exempt under sections 29 and 30 of the Act and it also contended that parts of the report are exempt under section 37(1) of the Act.

This Office informed the applicant of the Department’s submission in relation to section 37(1) of the Act. In reply, the applicant stated that he is not seeking personal information of any third parties and he said he is agreeable to limiting the scope of his request to the outcome of the survey conducted by GRETB and the factual information contained therein.

The outcome of the survey conducted by GRETB is contained in section 5 of the report, which is headed "Survey Response". The scope of this review is confined to the question of whether GRETB was justified in refusing access to section 5 of the Report on the Schools Reconfiguration for Diversity Process under sections 29(1) or 30(1)(c) of the FOI Act.

Preliminary Matters

Section 2 of the Act defines "record" as including "a copy or part" of anything falling within the definition of a record. Section 18(1) provides, that "if it is practicable to do so", access to an otherwise exempt record shall be granted by preparing a copy, in such form as the head of the FOI body concerned considers appropriate, of the record with the exempt information removed. Section 18(1) does not apply, however, if the copy provided for thereby would be misleading (section 18(2) refers).

The Commissioner takes the view that neither the definition of a record under section 2 of the Act nor the provisions of section 18 envisage or require the extracting of particular sentences or occasional paragraphs from records for the purpose of granting access to those particular sentences or paragraphs. Generally speaking, he is not in favour of the cutting or "dissecting" of records to such an extent. He takes the view that, being "practicable" necessarily means taking a reasonable and proportionate approach in determining whether to grant access to parts of records.

It should be noted that, while I am required by section 22(10) of the FOI Act to give reasons for my decision, this is subject to the requirement of section 25(3) that I take all reasonable precautions to prevent disclosure of information contained in an exempt record during the course of a review. This constraint means that the detail that I can give about the content of the record and the extent to which I can describe certain matters in my analysis is limited. Finally, the release of a record under the FOI Act is understood, effectively, to be equivalent to its release to the world at large.

Analysis and Findings

The Report

The background to the report at issue is outlined in a press release issued by the Department on 28 May 2018:

“...The Schools Reconfiguration for Diversity process is Minister Bruton’s plan to deliver on the Government’s target to reach 400 multi-denominational and non-denominational schools by 2030. New schools will account for a certain amount of this provision, but transfers of existing schools from religious patronage will also be required to achieve that target…There are two phases to the new School Reconfiguration process – the Identification Phase and the Implementation Phase…Each of the 16 ETBs across the country have selected an initial pilot area where the first surveys of pre-school parents will be carried out. The relevant City and County Childcare Committee will actually conduct the surveys on behalf of the ETB. Parents will now have two weeks in which to complete the surveys, and all surveys will be completed by mid-June 2018. ETBs will then analyse the survey results and draw up a comprehensive report on the position in relation to each of the 16 pilot areas for submission to the Department of Education and Skills, who will then subsequently publish the reports…” https://www.education.ie/en/Press-Events/Press-Releases/2018-press-releases/PR18-05-28.html

Section 5 of the report contains the survey response by parents of pre-school children in the pilot area selected by the GRETB.

In my view, section 30 of the FOI Act is most relevant to my review of this matter. I will therefore address this exemption in the first instance.

Section 30 - Functions and negotiations of FOI Bodies

Section 30(1)(c) allows an FOI body to refuse to grant an FOI request if access to the record 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(1) is subject to a public interest test under section 30(2).

It is important to note that this exemption does not contain a harm test. It is sufficient that access to the record concerned could reasonably be expected to disclose such negotiation positions, plans etc. An FOI body relying on section 30(1)(c) should identify the relevant negotiations at issue. Section 30(1)(c) makes no distinction between disclosures which have the potential to prejudice current or future negotiations or to cause some other harm and disclosures which do not. However, such a distinction should be made in applying the public interest test in section 30(2) to records which disclose positions taken etc. for the purposes of negotiations.

Submissions

The applicant states that the information requested relates simply to a survey of parents of pre-school children in the relevant area by the County Childcare Committee on behalf of GRETB. He states that having analysed the survey results, GRETB then drew up a comprehensive report detailing the outcome of the survey. He states that it is difficult to see how an information gathering exercise/survey of citizens’ views could reasonably be expected to disclose positions for the purpose of negotiations carried on by an FOI body.

GRETB submits that while the reconfiguration process is being worked through with the IEC, it is important that the report would not be made public, as premature release could damage the ongoing engagement and work by the Department and IEC on endeavouring to have agreement on a sustainable structured process to facilitate meeting parental demand for greater diversity.

The Department contends that the issue of patronage and the ownership of schools and school property is complex both constitutionally and in terms of property law and rights. It states that typically, it can involve religious trusts, trustees, religious orders, the bishops (both as landowners and school patrons) and the State. It states that the ownership of the vast majority of school property is held by religious orders and trusts. The Department states that if the existing patron has concerns, these concerns must be addressed to make progress. It states that it has been engaging for some time and is continuing to engage on a frequent basis with representatives of the IEC and other stakeholders with a view to developing an agreed approach to the next phase of the process and these discussions have not concluded. The Department contends that premature release of the survey results could disclose positions taken or to be taken by the Department in negotiations with the IEC and other stakeholders in relation to potential transfers of patronage in the area covered by the report.

Findings

An FOI body relying on section 30(1)(c) should identify the relevant negotiations at issue. Relevant factors in considering whether there is or was a negotiation include whether the FOI body was trying to reach some compromise or some mutual agreement. The wording of section 30(1)(c) extends to negotiations carried out by an FOI body other than the body making the FOI decision. Records relating to past, present or future negotiations may be protected under section 30(1)(c).

An FOI body must show to the Commissioner that release of the record could reasonably be expected to disclose positions taken (or to be taken) or plans etc. used or followed (or to be used or followed) for the purpose of any negotiations.

I accept that the Department is involved in negotiations with the IEC and other stakeholders aimed at trying to reach agreement in relation to potential transfers of patronage. I also accept that the Department’s position in these negotiations is informed by the survey results. I note in this regard, that in its the press release announcing the surveys, the Department stated:

“The survey results will form the basis of discussions with the most prevalent patron/landowner in the area (the Catholic Bishop in most cases) concerning the transfer of patronage of an existing school to meet that demand.” https://www.education.ie/en/Press-Events/Press-Releases/2018-press-releases/PR18-05-28.html

In my view, disclosing the survey results could reasonably be expected to disclose positions taken or to be taken by the Department in its negotiations in relation to potential transfers of patronage. I find, therefore, that section 30(1)(c) applies to section 5 of the report.

Section 30(2) The Public Interest

As a result of this finding, I am now required to apply the public interest balancing test under section 30(2) of the FOI Act. Section 30(2) of the FOI Act provides that section 30(1) shall not apply if the public interest would, on balance, be better served by granting than by refusing to grant the FOI request concerned.

On the one hand, section 30(1)(c) itself reflects the public interest in protecting positions taken for the purpose of any negotiation carried on by or on behalf of the Government or an FOI body. In this case, I accept that there is a public interest in protecting positions taken by the Department for the purpose of negotiations about potential transfers of patronage.

On the other hand, I must consider whether there is a public interest in disclosing the content of section 5 of the report. This Office has regard to the general principles of openness and transparency set out in section 11(3) of the FOI Act. Section 11(3) recognises the need to enhance public scrutiny and accountability of government and public affairs, particularly the activities and decision making of FOI bodies. However, it is important to note that in The Minister for Communications, Energy and Natural Resources and the Information Commissioner & Ors [2020] IESC 57, the Supreme Court held that general principles of openness and transparency do not provide a sufficient basis for directing the release of otherwise exempt information in the public interest. Rather, a “sufficiently specific, cogent and fact-based reason” is required “to tip the balance in favour of disclosure”. Although the Court’s comments were made in cases involving confidentiality and commercial sensitivity, I consider them to be relevant to the consideration of public interest tests generally.

The Department says it is working on having an agreed approach with the IEC and other stakeholders. It says that while this is being worked through, it is important that the reports would not be made public at this time as premature release could damage ongoing engagement and work by the Department and the IEC and other stakeholders on endeavouring to have agreement on a sustainable structured process to facilitate meeting parental demand for greater diversity. It contends that premature release of the records could create an expectation of a particular course of action in the relevant community and, without progressing such a course of action in a measured and careful way in consultation with the relevant stakeholders and the local school communities, there is potential for unfounded expectations to arise which have the potential to be detrimental to the objective of having an agreed approach with the stakeholders.

I have considered the public interest factors in favour of release. These include the contribution that the information contained within the record could make to the public debate on the issue of school reconfiguration, the increased public awareness it would bring, which would allow for comment on public affairs, and it would also contribute to scrutiny of decision-making processes, as and when decisions are made in this regard.

The Department states that its experience in relation to the school’s reconfiguration process shows that there is a need to handle these matters sensitively and in a measured way. It provided this Office with examples of newspaper articles and correspondence it has received regarding similar exercises in other parts of the country to demonstrate the sensitivity of the record at issue here. The Department stated that unfounded expectations (which could arise from the release of the part of the report at issue) have the potential to be unnecessarily divisive and to derail ongoing negotiations.

I accept that releasing the relevant part of the report at a time when the Department is involved in ongoing negotiations has the potential to be detrimental to those negotiations. Having considered this matter carefully, I consider that, on balance, the public interest in protecting the Department’s position in the negotiations outweighs the public interest in disclosing the section of the report at issue.

In light of this finding, it is not necessary to consider whether section 5 of the report is also exempt under section 29 of the FOI Act.

Decision

Having carried out a review under section 22(2) of the Freedom of Information Act, I hereby affirm the decision of GRETB to refuse access to section 5 of the report under section 30(1)(c) of the Act.

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