Irish Information Commissioner's Decisions

Whether the Department was justified in refusing access to copies of all correspondence, emails and text messages received from staff of the Communications Clinic to the Minister or staff of the Department from 24 September 2020 to 3 October 2020

OIC-106749-G8M7Q9

Background

In a request dated 28 February 2021, the applicant sought access to copies of all correspondence, emails and text messages received from staff of the Communications Clinic to the Minister or staff of the Department from 24 September 2020 to 3 October 2020. This related to a time period in which it was discovered that coding errors had arisen in the course of the implementation of a calculated grades system for the 2020 Leaving Certificate examinations.

On 30 March 2021, the Department issued a decision wherein it identified 26 records as falling within the scope of the applicant-�s request. It granted access to one record and part-granted access to 25 records, with the redaction of information under sections 29, 36, and 37 of the Act. The applicant sought an internal review of that decision, whist indicating that he had no objection to the redaction of personal phone numbers and email addresses that were withheld under section 37.

On 22 April 2021 the internal reviewer issued his decision wherein he broadly affirmed the original decision. However, he granted full access to a further two records which had been partly refused on the basis of sections 36 and 37.

On 26 April 2021 the applicant sought a review by this Office of the Department-�s decision. In the course of the review, the applicant indicated that he did not require this Office to examine the redactions that had been made under sections 36 and 37.

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 submissions made by applicant in his application for review and to the submissions made by the Department in support of its decision. I have also had regard to the contents of the records concerned. I have decided to conclude this review by way of a formal, binding decision. In referring to the records at issue, I have adopted the numbering system used by the Department in the schedule of records it prepared when processing the request.

Scope of the Review

The Department redacted certain information from records 3, 8, and 14 under section 29 of the Act. During the review, it also sought to rely on sections 30(1)(a) and 30(1)(b) to withhold the information in question.

This review is therefore concerned with whether the Department was justified in refusing access to the relevant parts of records 3, 8 and 14 under sections 29(1), 30(1)(a) and 30(1)(b) of the FOI Act.

Preliminary Matter

Section 22(12)(b) of the FOI Act provides that when the Commissioner reviews a decision to refuse a request, there is a presumption that the refusal is not justified unless the public body "shows to the satisfaction of the Commissioner that the decision was justified". Therefore, in this case, the onus is on the Department to satisfy the Commissioner that its decision to refuse access to certain records, either in whole or in part, was justified.

Analysis and Findings

Section 29

Section 29(1) provides for the discretionary refusal of a request, (a) if the record concerned contains matter relating to the deliberative processes of an FOI body, including opinions, advice, recommendations and the results of consultations considered by the body for the purpose of those processes, and (b) the body considers that the granting of 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. Furthermore, the public interest test at section 29(1)(b) is a strong test. Any arguments against release should be supported by the facts of the case and it should be shown how release of the record(s) would be contrary to the public interest.

The first requirement which must be met in order for section 29(1) to apply is that the record must contain matter relating to the -�deliberative processes-� of an FOI body. An FOI body relying on this exemption should identify both the deliberative processes concerned and any matter in particular records which relates to these processes.

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 fact that a deliberative process exists and is ongoing does not mean that the exemption automatically applies without consideration of all the provisions of section 29. Equally, the fact that a deliberative process is at an end does not mean that the exemption automatically does not apply.

Any arguments against release under section 29 of the Act should be substantiated and supported by the facts of the case. It is important that the FOI body shows how granting access to the particular record(s) would be contrary to the public interest, e.g. by identifying a specific harm to the public interest flowing from release.

Records 3 and 8 are early drafts of press statements relating to the coding errors that arose in the calculated grades process and record 14 is an early draft of a speech delivered by the

Minister on 3 October 2020 in relation to the same matter. With regard to records 8 and 14 the Department has indicated that the records contain certain factual inaccuracies.

In its submission to this Office, the Department has argued that the records relate to the 2020 Leaving Certificate calculated grades process and contain advice, recommendations, and opinions relating to the decision making process at the time.

It said the three records in question contain opinions and advice on draft press statements and speeches that were amended and clarified in the final versions. It said the records also include estimates and incorrect figures, which were in some cases placeholders for drafting purposes, and it argued that it would not be of benefit for these figures to be publicly disclosed.

The Department said the press conferences, press statements and speeches delivered by the Minister at the time were designed to provide clear, concise and factual information to students on how the coding errors were discovered and how the errors would be rectified for the students affected. It added that students were signposted to factual information in relation to the coding errors at the time and it would not be helpful for the estimates and drafts contained in the records at issue to be released when the factual information is in the public domain.

Having considered the matter, while I accept that the records contain recommendations, advice, and opinions, they do not, in my view, relate to a deliberative process as envisaged by section 29. I fully accept that the discovery of coding errors would have led to deliberations within the Department as to how best to proceed. However, the records at issue do not relate to those deliberations. Rather, they were created after the decisions had been taken as to how to proceed. The recommendations, advice, and opinions in the records simply relate to how the Minister should present the issue in subsequent press statements and speeches, and are not concerned with the substantive deliberative process. I find, therefore, that section 29(1) does not apply.

Section 30

Section 30(1)(a) provides for the refusal of a request if the FOI body considers that access to the record concerned could reasonably be expected to prejudice the effectiveness of tests, examinations, investigations, inquiries or audits conducted by or on behalf of an FOI body or the procedures or methods employed for the conduct thereof.

Section 30(1)(a) envisages two potential types of "prejudice" or harm. The decision maker must hold the view that the release of the record could reasonably be expected to prejudice the "effectiveness" of the tests, examinations, investigations, inquiries or audits, or prejudice the "procedures or methods employed for the conduct thereof-�. Where an FOI body relies on this provision, it should identify the potential harm in relation to the relevant function specified in paragraph (a) that might arise from disclosure. Having identified that harm, it should consider the reasonableness of any expectation that the harm will occur. The FOI body should explain how and why, in its opinion, release of the record(s) could reasonably be expected to give rise to the harm envisaged. A claim for exemption under

section 30(1)(a) must be made on its merits, in light of the contents of each particular record concerned and the relevant facts and circumstances of the case.

Section 30(1)(b) provides for the refusal of a request where the FOI body considers that access to the record concerned could 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). An FOI body relying on section 30(1)(b) should identify the potential harm to the performance of any of its functions relating to management that might arise from disclosure. Having identified that harm, it must consider the reasonableness of any expectation that the harm will occur, which must be of a -�significant, adverse-� nature. This Office also considers that the term management is a word of wide import and that it is apt to cover a variety of activities of an FOI body, including activities such as strategic planning, and the management of operational matters.

Where a record is exempt under either section 30(1)(a) or (b), the public interest test at section 30(2) must be considered.

At the time of its submission, the Department said the 2021 Leaving Certificate and accompanying accredited grades system was underway and this year-�s model of accredited grades draws on the 2020 model of calculated grades. It said that while schools submitted estimated percentage marks for students, the processes of making refinements to the model, considering the 2021 data submitted by schools, and national standardisation, were underway. It argued that as the accredited grades model is considered for certification purposes to lead to the awarding of a Leaving Certificate, it should be considered to relate to tests and examinations for the purposes of section 30(1)(a).

The Department further argued that the release of records relating to the errors in the 2020 process which contain incorrect factual information, with possible resulting media commentary, could reasonably be expected to impact on capacity to operate and successfully deliver the process of national standardisation for the 2021 accredited grades system in a fair and impartial manner. It argued that such commentary could reasonably be expected to have a knock-on effect on students-� confidence in the 2021 system, most particularly in the lead-up to the release of the 2021 results, which it termed a time of enormous stress for students.

Having regard to the contents of the records at issue, I do not accept the Department-�s arguments. Essentially, its arguments in support of refusal of the records under section 30 are based on its assertion that the records contain incorrect information. 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. In this case, the Department has indicated that the correct information is already in the public domain and

as such I do not consider the Department-�s arguments to be well founded. I find, therefore, that section 30 does not apply

In light of my findings there is no need for me to consider the public interest test at section 30(2).

Decision

Having carried out a review under section 22(2) of the FOI Act, I annul the Department-�s decision to refuse access in full to records 3, 8 and 14 and I direct that they be released, with the exception of the email addresses of individuals other than staff of the Department.

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