Whether the Department was justified in refusing access to records sought relating to a policy document -�Planning for reopening schools in line with the roadmap for reopening society and business-� published on 12 June 2020 under sections 15(1)(a) and 30(1)(c) of the FOI Act

19 October 2022

Background

In a request dated 24 August 2021, the applicant sought access to;

1. All briefing material prepared for the Minister for Education in relation to the policy document -�Planning for reopening schools in line with the roadmap for reopening society and business-� published on 12 June 2020 (the policy); and
2. All correspondence at senior official and ministerial level in relation to the development and implementation of the policy document,

for the period April 2020 to July 2020.

In a decision dated 15 October 2021, the Department refused both parts of the request under section 15(1)(a) of the FOI Act on the ground that the records sought did not exist within the Department. The applicant sought an internal review of the Department-�s decision. In its internal review decision, the Department refused access to nine records it identified as falling within part 1 of the request under section 28(1)(a), and affirmed its refusal of part 2 under section 15(1)(a). On 5 November 2021, the applicant applied to this Office for a review of the Department-�s decision.

The nine records identified as relevant to part 1 comprised nine emails, eight of which contain attachments. During the course of the review, the Department accepted that section 28 did not apply to the emails and released them. It also revised its position with regard to the attachments and argued that they were exempt under section 30(1)(c) of the Act. It confirmed that it was no longer relying on section 28 to withhold the records. It also said it had since identified 67 records (later revised to 69) relevant to part 2 of the request, and that there had been a misunderstanding on its part as to what was required when dealing with the request. It provided a schedule of the records and indicated that some of the records could be released in full or in part and some withheld. 

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 applicant 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.

Scope of Review

This review is concerned solely with whether the Department was justified in refusing access, under various provisions of the FOI Act, to records falling within the scope of the applicant-�s request for certain records relating to the policy document.

Preliminary Matters

Section 22(12)(b) of the FOI Act provides that a decision to refuse to grant an FOI request shall be presumed not to have been justified unless the FOI body satisfies this Office that its decision was justified. 

Analysis and Findings

Part 1 of the Request

The Department refused access to eight attachments to the emails it identified as relevant to part 1 of the request under section 30(1)(c) of the Act. The attachments comprise drafts of all or parts of the policy. Section 30(1)(c) provides that an FOI body may refuse to grant a request if it considers that access to the record concerned could 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)(c) is subject to a public interest test under section 30(2).

Section 30(1)(c) does not require the identification of any particular harm. It is sufficient that access to the record concerned could reasonably be expected to disclose such negotiation positions, plans etc. There is no requirement to take a view on the consequences of the disclosure of those positions or that disclosure would have an adverse effect on conduct by the Government or the FOI body of its negotiations. However, this matter may be relevant to the public interest test in section 30(2). An FOI body relying on section 30(1)(c) should identify the relevant negotiations at issue.

According to the Department, the records at issue are draft versions of the policy and contain matters relating to the deliberative processes of the Department regarding the policy surrounding the opening of schools for the 2020/21 school year. It argued that the public interest would not be best served at this point to release details that could disclose the negotiation position (including plans, procedures or instructions) of the Department and may have a significant adverse effect on the performance of the Department of any of its functions relating to management.

The Department has not identified any particular negotiations to which the records relate, nor has it identified any particular parts of the records which differ from the final published policy, the release of which might disclose positions taken etc for the purposes of any negotiations. Having examined the records, the extent to which the content differs from the final published policy is limited. I have also not identified anything in the withheld records that would disclose positions taken etc. Having carefully considered the matter and taking account of the provisions of section 22(12)(b), I am not satisfied that the Department has demonstrated that the conditions for the exemption to apply have been met.  I find that section 30(1)(c) does not apply to the records and direct their release in full. 

Part 2 of the Request

While the Department initially refused part 2 of the request under section 15(1)(a) on the ground that the records sought did not exist within the Department, it subsequently identified 69 relevant records. As noted above, the Department provided a schedule of the records and indicated that while some of the records could be released in full, it wished to withhold access to certain others in whole or in part.

Having considered the matter, I consider that the most appropriate course of action to take is to annul the Department-�s decision in respect of part 2 of the request and to remit the matter back to the Department for consideration afresh. It will be open to the applicant to consider the contents of any records the Department is willing to release in whole or in part and if she is not satisfied with the information released, she can apply for an internal review of the Department-�s fresh decision and, if necessary, can apply again to this Office for a further review if she remains dissatisfied with its response.

Decision

Having carried out a review under section 22(2) of the FOI Act, I hereby annul the Department-�s decision. I find that the Department was not justified in refusing the request.  I direct the release in full of the eight records identified as relevant to part 1 and I direct the Department to undertake a fresh decision making process on part 2, in accordance with the provisions of the FOI Act. 

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