Whether the Council was justified in refusing access, under sections 29 and 37 of the FOI Act, to recordings of certain public meetings in connection with the review of the Council’s County Development Plan

29 November 2021

Background

In a request dated 21 May 2021 the applicant sought access to copies of the audio and video recordings of the Special Planning Meetings that took place between 19 October 2020 and 5 March 2021 that were attended by elected members, Council officials and members of the public

In a decision dated 18 June 2021, the Council refused the applicant’s request, citing section 29(1) of the FOI Act as the basis for its decision. On 21 June 2021, the applicant sought an Internal Review of the Council’s decision. In its Internal Review decision of 9 July 2021, the Council affirmed its refusal of the request under section 29(1) of the Act, and in addition cited section 37(1) of the Act as a further basis on which it considered that the records were exempt from release. On 12 July 2021, the applicant sought a review by this Office of the Council’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 submissions made by the Council and the solicitor for the applicant. 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.

Scope of the Review

In a schedule of records provided to this Office, the Council identified 30 records that fell within the scope of the applicant’s request (with each record corresponding to a recording of a Special Planning Meeting that took place between the dates in question. This review is concerned with whether the Council was justified, under sections 29(1) and 37(1) of the Act, in refusing access to those 30 records.

Analysis and Findings

Section 29(1)

Section 29(1) provides that an FOI body may refuse to grant a request (a) if the record concerned contains matter relating to the deliberative processes of an FOI body, and (b) the body considers that granting the request would be contrary to the public interest. These are two separate 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 demonstrate that both requirements are met.

The public interest test at section 29(1)(b) is a strong test, and 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. There is nothing in the exemption itself which requires the deliberative process to be ongoing, although the question of whether the deliberative process is ongoing or at an end may be relevant to the issue of the public interest.

Deliberative processes

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.

In its submissions to this Office, the Council said that the withheld records each related to its review of the current County Development Plan, with a view to creating the Meath County Development Plan 2021-27. It said this was statutory process which it carried out in accordance with the Planning and Development Acts 2000-2021. It is noted that section 9 of the Planning and Development Act 2000 (as amended by the Planning and Development Act 2021) provides an obligation on a planning authority to make a development plan.

The Council also said that, at the time the applicant’s FOI request was received, it was concluding Stage 2 of the review process and commencing Stage 3. Stage 2 entailed holding Special Planning Meetings (SPMs) to consider submissions received during the public consultation period in relation to the draft County Development Plan and the Notices of Motion tabled by elected members of the Council. The Council said it was in the context of these SPMs that the records sought by the applicant were created. It said that at the time of the request, the decisions made during the SPMs were being assessed for their likely environmental impact, and the resulting material alterations to the to the draft County Development Plan were put on display for observation and submissions from statutory bodies and members of the public from 31 May to 29 June 2021. The Council added that the primary purpose of the creation of the records was to assist in the preparation of the minutes of the SPMs held between November 2020 and March 2021 to ensure their accuracy, with the intention being to retain the records for no longer than was necessary.

Having regard to the nature of the records at issue and the Council’s description of the process concerned, I accept that they relate to the deliberative processes of the Council.

Public Interest

However, this is not the end of the matter because, as outlined above, I must also consider whether the release of the records would be contrary to the public interest. 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, requiring the FOI body to show that the granting of the request would be contrary to the public interest. This Office has previously held that the Act clearly envisaged that there will be cases in which disclosure of 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 is not to say that such disclosure is always, as a matter of principle, against the public interest. Any arguments against release under section 29 should be substantiated and supported by the facts of the case. An FOI body should show how granting access to the particular record would be contrary to the public interest, e.g. by identifying a specific harm to the public interest flowing from release.

In its submissions, the Council indicated that it had considered the public interest factors both for and against release of the records. In favour of release, it stated that it had considered the public interest in the right of the public to have access to information; the fact that the release of the records would reveal the reasons for decisions taken; and that release would enhance the accountability of administrators and members of the Council and the scrutiny of the process. Against release, the Council stated that it had identified the public interest in preventing the contamination of the process which might result from premature release of the information contained in the records, and the impairment of the integrity of the process without countervailing benefit to the public.

In its application for submissions, the applicant argued that, absent some very particular circumstances specific to the content of the recordings (which it stated there was no reason to believe was the case here), the fact that deliberations were conducted in public meant that release could never be contrary to the public interest. The applicant stated that, put simply, section 29 was intended to protect private deliberations only. It stated moreover that the adoption of a development plan was a procedure that is generally transparent and subject to public participation. The applicant argued that it was impossible to envisage how releasing the requested recordings could have any negative effect on this procedure. The applicant stated in addition that it was clear that the Council itself had been unable point to any such adverse effect on its deliberative process.

The applicant also submitted that the Council had incorrectly applied a public interest balancing test in relation to section 29(1)(b). The applicant stated that the Council had not applied the correct test and nor had it pointed to the facts of the case, instead simply applying a public interest balancing test without addressing the substance of the exemption contained in section 29(1)(b), which it stated was aimed at protecting private deliberative processes.

It seems to me that one of the main purposes of the exemption in section 29 is to ensure that the deliberations of public bodies are not prejudiced or impaired by the premature release of records relating to those deliberations. It should be noted that the time at which records are released may be significant. For example, it is possible that release of a particular record at a particular point in time would be contrary to the public interest, but that with the passage of time this would no longer be the case. Moreover, 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. Nevertheless, this Office takes the view that where the deliberative process is at an end, the case to withhold the release of the information may be weakened. As outlined in the Council’s submissions, the deliberative process at issue in this case was ongoing at the time of the applicant’s FOI request. However, as further outlined by the Council, the process is now at an end, with the elected Members having adopted the County Development Plan 2021-2027 on 22 September 2021.

Of more particular relevance in this case is that the records sought are concerned with a part of the deliberative process that was held in public. In such circumstances, I fail to see how it can reasonably be argued that the release of the records could prejudice or impair the deliberative process in some way. I do not accept the Council’s arguments that the release of the records could contaminate the process or impair the integrity of the process.

Section 22(12)(b) of the FOI Act provides that a decision to refuse to grant a request shall be presumed not to have been justified unless the FOI body shows to the satisfaction of the Commissioner that the decision was justified. Having considered the matter, I find that the Council has not satisfactorily shown that the release of the records at issue would be contrary to the public interest. I find, therefore, that section 29(1) does not apply.

Section 37

The Council also argued that all 30 records at issue were exempt from release under section 37(1) of the Act. Section 37(1) provides that, subject to the other provisions of the section, an FOI body shall refuse to grant a request if access to the record concerned would involve the disclosure of personal information. The effect of section 37 is that, generally speaking, access to a record shall be refused if it would involve the disclosure of personal information relating to individual(s) other than the requester. Under section 37(1), personal information cannot be released unless one of the other relevant provisions of section 37 applies.

Section 2 of the FOI Act defines personal information as information about an identifiable individual that either (a) would ordinarily be known only to the individual or to members of his/her family or to his/her friends, or (b) is held by an FOI body on the understanding that it would be treated by the FOI body as confidential. Furthermore, the Act details fourteen specific categories of information that is personal without prejudice to the generality of the foregoing definition.

Paragraph (I) of section 2 of the Act excludes certain information from the definition of personal information, namely;

“(I) in a case where the individual holds or held—
(A) office as a director of,
 (B) a position as a member of the staff of, or
 (C) any other office, or any other position, remunerated from public funds in,

an FOI body, the name of the individual or information relating to the office or position or its functions or the terms upon and subject to which the individual holds or held that office or occupies or occupied that position or anything written or recorded in any form by the individual in the course of and for the purpose of the performance of the functions aforesaid” Similar such information is excluded in the case of service providers under Paragraph (II) of section 2.

In its submissions regarding section 37(1), the Council stated that the records could be separated into two categories: firstly, Records 1-14, which are audio and visual recordings of SPMs that took place in November and December 2020, and which were “hybrid” meetings, in other words with elected members and Council staff attending physically at the meeting venue, with some elected members and others participating remotely via Zoom. The Council stated that the visual image and voice recording of elected members and officials was captured in these recordings. Secondly, Records 15-30, which are audio and visual recordings of SPMs that took place entirely online via Zoom due to the Covid-19-related public health restrictions in place at the time. The Council stated that these included the visual image and voice recording of elected members and Council staff, and the visual image of members of the press and general public. The Council argued that the recorded material in the two categories of records therefore constituted a significant level of personal information, as defined in the FOI Act.

Furthermore, the Council cited in support of its position two previous decisions of this Office (decision reference numbers 103739 and 96388). In both of those cases, this Office had affirmed the decision of the HSE to refuse access to CCTV footage sought by the requesters, on the grounds that to release it would be to disclose the personal information of HSE staff captured by the footage. In both decisions, this Office indicated that the exclusion at Paragraph (I) and (II) of section 2, as outlined above, to the definition of personal information did not exclude all information relating to staff members. The decisions stated that the exclusions were intended, in essence, to ensure that section 37 could not be used to exempt the identity of a public servant or a service provider in the context of the particular position held or service provided, or any records created by the staff member while carrying out his or her official functions or while providing the service, or information relating to the terms conditions and functions of positions; but that exclusion did not deprive public servants or service providers of the right to privacy generally. They held that a clear distinction could be drawn between the name of a staff member contained in an official record and an image of that staff member captured on CCTV footage, and that that additional information going beyond mere identification could be derived from such an image that was unrelated to either the position held by the staff member or its functions. As such, in both decisions, this Office found that the release of the CCTV footage at issue would disclose personal information relating to third parties, and that therefore section 37(1) applied.

In its submissions, the applicant argued that section 37(1) did not apply to the information contained in the records. It argued first of all that the information relating to members of the public who had attended the SPMs was not captured by section 37(1), on the basis that the information was neither of a type that would (a) in the ordinary course of events, be known only to the individual or members of the family, or friends, of the individual, nor that (b) it was held by the Council on the understanding that it would be treated as confidential (in satisfaction of the definition of personal information provided for in section 2 of the Act). The applicant stated that a video recording of an individual observing a public meeting of the Council did not come within either part of the definition, and nor was it within any of the specific categories (i) to (xiv) of personal information outlined in section 2. The applicant argued that that the image of a person could clearly be known outside of an individual’s family members or friends, and that the public nature of the meeting could not give rise to an understanding of confidentiality. The applicant argued that, even if the recorded video images of the public attendees could be considered to fall within the definition of personal information, there was no such information on the audio recording since members of the public were not allowed speak at the meeting.

In respect of the information captured in the records relating to Council officials and elected members, the applicant argued that, contrary to the Council’s assertions, the recorded material fell within the exclusion provided for in Paragraphs (I) and (II) of section 2 of the Act. The applicant argued that the information contained in the records was not private, and consisted of recordings of public meetings where the Council staff attended and participated in their professional capacity as public servants fulfilling a statutory function, and where the elected members attended and participated as public representatives performing their statutory functions. As such, according to the applicant, recordings of the Council staff and the elected members could not be classed as either personal information or private information.

Disclosure of those parts of the recordings that capture images of members of the public would disclose the fact that they attended the public meetings in question. In my view, such information is not personal information for the purposes of the FOI Act. It is not information that (a) would, in the ordinary course of events, be known only to the individual or members of the family, or friends, of the individual, or (b) is held by an FOI body on the understanding that it would be treated by that body as confidential. In circumstances where the SPMs at issue were held publicly, no individuals who attended could have had any expectation that they fact that they attended the meetings would be treated by the Council as confidential. I am also satisfied that such information is not captured by any of the fourteen categories of information set out in the definition.

Secondly, as regards the information in the records that pertains to Council officials and elected Members, I find that this information also falls outside the definition of personal information in section 2 of the Act, by virtue of the fact that it falls within the scope of the exclusion to that definition provided for in Paragraph (I) of section 2. I make this finding on the basis that the Council officials and elected Members were, by way of their attendance and participation at the SPMs, fulfilling their official functions as members of staff of the Council, and/or as holders of office remunerated from public funds in the Council, so as to bring the recording of said attendance within the scope of the exclusion in Paragraph (I) of section 2.

Decision

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