Whether the Department was justified in refusing access to a report into the malfunctioning of lifejackets, under sections 29 and 30 of the FOI Act

 

29 October 2021

 

Background

On 29 September 2020, the applicant made an FOI request to the Department for “a copy of the report conducted into the issue of malfunctioning lifejackets by the Irish Coast Guard, the supplier and the manufacturer, arising from issues in late 2019”. On 16 October 2020, the Department refused access to the record on the ground that it was exempt under section 30(1)(a) of the FOI Act. On 19 October 2020, the applicant applied for an internal review. On 10 November 2020, the Department issued its internal review decision, in which it varied its original decision. It refused access to the information under sections 29, 30(1)(a), 30(1)(b) and 30(1)(c) of the FOI Act. On 30 December 2020, the applicant applied to this Office for a review of the Department’s decision.

In conducting my review, I have had regard to the correspondence between the applicant and the Department as outlined above and to the correspondence between this Office and both parties, as well as to the content of the withheld record, which was provided to this Office by the Department for the purposes of this review.

 

Scope of the Review

This review is concerned with whether the Department was justified in refusing access to the record under sections 29, 30(1)(a), 30(1)(b) and 30(1)(c) of the FOI Act.

 

Preliminary Matters

Before considering the exemptions claimed, I would like to note that while I am required to give reasons for my decision under section 22(10) of the FOI Act, I am also required to take reasonable precautions to prevent disclosure of information in an exempt record, under section 25. This means that the extent to which I can describe the record and the level of detail I can discuss in my analysis are limited.

 

Analysis and Findings

Section 29 – Deliberations of FOI bodies

Sections 29(1)(a) and (b)

Section 29(1) of the FOI Act provides that an FOI body may refuse to grant an FOI request if the record contains matter relating to the deliberative process and granting the request would be contrary to the public interest. These are two independent requirements and the fact that the first is met carries no presumption that the second is also met. It is therefore important for public bodies to show to the satisfaction of the Commissioner that both requirements are met. The public interest test contained in this provision differs from the public interest test found in other exemptions under the FOI Act. To avail of this exemption, the public body must be of the opinion that releasing the records would be against the public interest. Other exemptions require the public body to be of the opinion that the public interest would be better served by release. In my view, this exemption tends more strongly towards release of the records.

 

Submissions

The record is a report into an incident in 2019, which relates to the malfunctioning of lifejackets. The Department says that this report is central to its deliberative process about the apparent malfunction of life jackets used by the Irish Coast Guard (IRCG). It says it involved gathering relevant information from various sources, considering the information, weighing up options and determining the appropriate decision. The Department says it is not intended to publish these reviews. It submits that publication could be counterproductive and defeat the intention of creating a “just culture”. Moreover, it says that details have been supplied to the Health and Safety Authority in support of their subsequent investigations. It says that this may lead to additional deliberation and action, including law enforcement. It submits that releasing detail at this stage could prejudice the overall process and may result in the requester becoming aware of a significant decision the body proposes to make. Finally, it says that the issue has been widely reported on and therefore the public interest has been significantly satisfied.

The applicant says that the report led to the withdrawing of IRCG cover across the country, giving rise to significant concern among the public, so it should be subject to scrutiny and the details contained within (perhaps subject to redactions) should be released in the public interest.

During the investigation, this Office’s investigator invited submissions from the supplier of the particular lifejacket, which was the subject matter of the report. To date, this Office received no submissions were received from the company.

 

Analysis and Findings

Section 29(2)(b) provides that the exemption at section 29(1) does not apply to a record insofar as it contains factual information. Section 2 of the FOI Act states that "factual information" includes information of a statistical, financial, econometric or empirical nature, together with any analysis thereof. The Commissioner regards factual information as including material presented to provide a factual background to the central topic in a record, and that factual information is distinguishable from information in the form of a proposal, opinion or recommendation. The record contains the following kinds of information about the incident: initial containment and risk assessment, causes and corrective action. Having examined the record, I consider that it contains factual information; e.g. background facts, as opposed to proposals or recommendations. However, given my conclusion on section 29(1) below, I do not consider it necessary to separate out the factual information from the deliberative material for the purposes of this decision. That said, I consider it pertinent that the record contains factual information and will return to this point below.

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. Having examined the record, I accept that it contains matter relating to a deliberative process about the malfunctioning of lifejackets in 2019. I therefore find that section 29(1)(a) applies. I am then required to consider section 29(1)(b).

Section 29(1)(b)

The Commissioner has found that the FOI Act clearly envisaged that there will be cases in which disclosing the details of an FOI body’s deliberations - whether before or, in some cases, after a decision based on those deliberations has been made - would be against the public interest. However, this was not to say that such disclosure is always, as a matter of principle, against the public interest. Any arguments against release under section 29 of the FOI Act should be substantiated and supported by the facts of the case.  It is important that the FOI body shows to the satisfaction of the Commissioner how granting access to the particular record(s) would be contrary to the public interest, for example, by identifying a specific harm to the public interest flowing from release. The Commissioner does not accept that the purpose of section 29 is to protect the deliberative process until its completion. If it were, it would have been a simple matter for the Oireachtas to have enacted a specific provision along these lines.

The public interest test at section 29(1)(b) is a stronger public interest test than the public interest test in many other sections of the Act (which require that, on balance, the public interest would be better served by granting than by refusing to grant the request).

The Department says that disclosure may defeat the purpose of a “just culture”. However, it has not shown how this harm could arise. My understanding is that a “just culture” is one in which people can report safety concerns without fear. On my own examination of the specific content, it is not apparent to me how its disclosure may defeat the purpose of a just culture. Neither has the Department substantiated its assertions that disclosure may prejudice the overall investigative process or lead to the applicant becoming aware of a significant decision that is proposed, for the purposes of section 29(1). Moreover, I have examined the record and it is not apparent to me how either of these harms could occur.

Finally, although the Department says that the public interest has been served by the matter being reported on, that is not the question that I must address. As highlighted above, the public interest test in section 29(1)(b) requires me to consider whether granting the request would be contrary to the public interest. In the circumstances, I am not satisfied that it would. In reaching this conclusion, I am also mindful of the fact that much of the content comprises factual information, rather than deliberative material which, as I have explained above, generally discloses accounts of the weighing up of information and options in order to make decisions.

I find that section 29(1)(b) does not apply and the Department was not justified in refusing access to the record under section 29 of the FOI Act.

 

Section 30 – Functions and negotiations of FOI bodies

Section 30(1)(a)

The Department claims that the record is exempt under section 30(1)(a). Section 30(1)(a) allows an FOI body to refuse to grant an FOI request if access to the record concerned could, in the opinion of the head, reasonably be expected to prejudice the effectiveness of tests, examinations etc. conducted by or on behalf of an FOI body or the procedures or methods employed for the conduct thereof. The Commissioner accepts that section 30(1)(a) is not aimed solely at investigations, inspections or evaluations now in progress but may also cover similar exercises conducted in the future. Section 30(1) is subject to a public interest test under section 30(2).

The Department says that details supplied relating to the investigations were given in confidence. It says that individuals may not cooperate or provide the same level of detail if this record were released, reducing the effectiveness of the investigation and prejudicing the procedures used for its conduct. The Department says that such investigations are critical in identifying and correcting any deviation from optimal operating conditions. It says that the conditions in which the IRCG operates can include life and death situations. The Department says that release could reasonably impair the investigative process and prejudice the effectiveness of investigations by undermining the confidential nature of reports and information required.

As noted earlier, the record contains the following kinds of information about the incident: initial containment and risk assessment, causes and corrective action. Having examined its content and considered the Department’s submission, I am satisfied that the record relates to an investigation for the purposes of section 30(1)(a). However, I am not satisfied that its disclosure could reasonably be expected to prejudice the effectiveness of such investigations or the procedures or methods employed for the conduct thereof. I accept the importance of such investigations and the need for cooperation in order for them to be effective. Yet once again, the Department has not identified a link between disclosure and the harm which it alleges. Neither is it apparent to me on examining this particular information how its release could harm such investigations. I find that section 30(1)(a) does not apply. I am therefore not required to consider the public interest test under section 30(2). I find that the Department was not justified in refusing access to the record under section 30(1)(a) of the FOI Act.

 

Section 30(1)(b)

The Department claims that the record is exempt under section 30(1)(b). Section 30(1)(b) allows an FOI body to refuse to grant an FOI request if access to the record concerned could, in the opinion of the head, reasonably be expected to have a significant, adverse effect on the performance by an FOI body of any of its functions relating to management (including industrial relations and management of its staff). Section 30(1) is subject to a public interest test under section 30(2).

The Department says that the disciplinary code may be invoked if wrongdoing is identified. It says that the information gathered is sensitive and is not intended for publication, as it defeats the intention of creating a “just culture”. The Department says that release would cause a significant adverse effect on the ability of the IRCG to carry out its functions in relation to the management of staff.

Establishing "significant, adverse effect" requires stronger evidence of damage than the "prejudice" standard of section 30(1)(a). In other words, not only must the harm be reasonably expected, but it must also be expected that the harm will be of a more significant nature than that required under section 30(1)(a). However, the Department has not shown how a “significant, adverse effect” would arise, as claimed. I have described the content of the record above and I have examined it carefully myself. I am not satisfied that disclosing it could have a significant adverse effect on the performance of functions relating to management. As noted earlier, it is not apparent to me how its release could defeat the intention of creating a “just culture” and the Department has now shown me how this would be the case. I find that section 30(1)(b) does not apply. I am therefore not required to consider the public interest test under section 30(2). I find that the Department was not justified in refusing access to the record under section 30(1)(b).

 

Section 30(1)(c)

The Department claims that the records are exempt under section 30(1)(c) of the FOI Act. 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. The Commissioner has also distinguished between disclosing the existence of a fact and disclosing a position or plan used for the purposes of negotiations.

The Department says that release could reasonably be expected to result in third parties becoming aware of the IRCG’s position in relation to issues involving negotiations. It says that it is of significant organisational importance that the IRCG can discuss such issues openly internally in order to agree positions with Senior Managers prior to mutual agreements being reached. However, the Department has not pointed to any positions taken or plans, procedures etc. to be used for the purpose of negotiations. Neither is this apparent to me on my own examination of the content of the record, which seems to me to disclose facts rather than positions or plans used for the purposes of negotiations. In the circumstances, there is no basis for me to find that section 30(1)(c) applies to the record. I am therefore not required to consider the public interest test under section 30(2). I find that the Department was not justified in refusing access to the record under section 30(1)(c).

 

Decision

Having carried out a review under section 22(2) of the FOI Act, I annul the Department’s decision and direct the release of the record.

 

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