Whether TII was justified in refusing access, under sections 29(1) and 30(1) of the Act, to a risk register extract pertaining to the proposed routing of the Finglas Luas route through a specified area

2 December 2022

Background

In a request dated 20 January 2022, the applicant sought access to -�all portions of the risk register and the decision register pertaining to the decision to route the Finglas Luas through Ravens' Court-�. On 24 January 2022, TII refused access to the relevant extract from the risk register under sections 29(1) and 30(1)(c) of the FOI Act. It refused access to the decision register under section 15(1) on the ground that it does not hold the record sought.

On 30 January 2022, the applicant sought an internal review of the decision to refuse access to the risk register extract. He accepted that TII does not hold the decision register sought. On 22 February 2022, TII affirmed its original decision. The applicant applied to this Office for a review of that decision on 17 August 2022.

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 contents of the record at issue, to the correspondence between the applicant and TII as outlined above, and to communications between this Office and both the applicant and TII on the matter. I have decided to conclude this review by way of a formal binding decision.

Scope of Review

This review is concerned solely with whether TII was justified in its decision to refuse access, under sections 29(1) and 30(1)(c) of the Act, to the risk register extract sought.

Preliminary Matters

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 TII to satisfy this Office that its decision to refuse access to the record at issue was justified.

Analysis and Findings

The Record

The TII Provided the following description of the record at issue:

-�The extract relates to a proposed land take from a number of private gardens and a communal public green space at Ravens-� Court, which is being considered as part of the ongoing Route Selection Process. The record includes a description of TII-�s concerns and possible mitigation measures and strategy in relation to the proposed land take for the new Luas line.

The Luas Finglas Risk Register, from which this record was extracted, identifies risks relating to potential public opposition to the Preferred Route, including from private landowners impacted by it. The Register notes that these risks could impact on the delivery of the scheme and points to the need for engagement with affected parties, which is taking place as part of the current Non-Statutory Public Consultation process. In essence, the Luas Finglas Risk Register contains opinions and recommendations from the Luas Finglas team regarding, among other matters, the mediation and mitigation of public opposition to the delivery of this crucial piece of public infrastructure, opinions and recommendations that reveal TII-�s deliberations and intended negotiation strategies. The Risk Register is therefore a live document that is updated at regular intervals by the Luas Finglas team, as it works through a range of challenges and associated deliberative and proposed negotiation strategies as the Scheme develops.-�

Section 29: Deliberations of FOI bodies

Section 29(1) of the Act provides for the discretionary refusal of a request if (a) the record contains matter relating to the deliberative processes of an FOI body (including opinions, advice, recommendations, and the results of consultations, considered by the body, the head of the body, or a member of the body or of the staff of the body for the purpose of those processes)and(b) granting the request would be contrary to the public interest. The exemption at section 29(1) has 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 this Office that both requirements are met.

A -�deliberative process-� as envisaged by section 29(1)(a) 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 submissions to this Office, TII said the risk register extract contains information that pertains to deliberations by the Luas Finglas team. It said the deliberative process of a public body in developing proposals for a public infrastructure project requires that confidentiality should be preserved while the deliberative process is ongoing, to avoid contaminating and therefore impairing this process. It argued that in this context, the release of the extracts from the Luas Finglas Risk Register would prejudice the integrity of the decision-making process. It said the Risk Register identifies the risks and also identifies the proposed mitigation measures, thereby showing TII-�s thinking process in relation to dealing with property owners and the strategy of the possible payment of compensation for land take concerning the Ravens-� Court area, by way of agreement or potentially by Compulsory Purchase Order (CPO). It argued that the release of the record would therefore allow the applicant to become aware of possible courses of action that TII may undertake, though not at this time, in relation to a significant decision that will impact upon the applicant.

TII further argued that the release of the record would set a precedent by allowing open access to any deliberative processes undertaken by TII during the development and delivery of public infrastructure projects, and that the release of such -�thinking process-� information would hamper the advancement of such capital schemes, causing unnecessary delays and ultimately undermining a public body-�s ability to ensure that it delivers value for the public purse when developing capital projects. It argued that it is therefore in the interest of the broader community that such deliberations, while ongoing, are protected from undue intrusion and permitted to function.

I accept that the record at issue in this case relates to a deliberative process for the purposes of the FOI Act. However, that is not the end of the matter because, as outlined above, I must also consider whether the release of the record in question 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.

The FOI Act clearly envisages 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 contrary to 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.

It seems to me that TII-�s arguments in this case are essentially arguments for the protection generally of records relating to ongoing deliberative processes as a class. While it suggested that the deliberative process in developing proposals for a public infrastructure project requires that confidentiality should be preserved while the deliberative process is ongoing to avoid contaminating and therefore impairing this process, it has not, however, explained how the release of the particular record at issue might contaminate and impair the ongoing process. Neither is it apparent to me how such harms might arise from the release of the record at issue. The record contains a very high level description of a specific risk and certain proposed mitigation measures. It seems to me that the specific risk is already known to the applicant and that the proposed mitigation measures are of a type that one might reasonably expect to find in mitigation of that risk. I fail to see how the release of the details of those mitigations could possibly contaminate or impair the deliberative process.

Moreover, TII is mistaken in its view that the release of the record would set a precedent by allowing open access to any deliberative processes undertaken by TII during the development and delivery of public infrastructure projects. Section 29 is a harm based exemption that must have regard to the nature and contents of the record sought. The fact that section 29(1) may not apply to the particular record at issue in this case does not mean that it cannot apply to any other records relating to deliberative processes undertaken by TII during the development and delivery of public infrastructure projects. Each case must be considered on its merits.

In the circumstances, I find that TII has not satisfactorily shown that the release of the record at issue would be contrary to the public interest in this case. I find, therefore, that section 29(1) does not apply

Section 30(1)(c)

Section 30(1)(c) provides for the refusal of a request where the FOI body 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. Where an FOI body relies on section 30(1)(c), it must also consider whether the public interest would, on balance, be better served by granting than by refusing to grant the request (section 30(2) refers).

This provision is designed to protect positions taken for the purpose of any negotiation carried on by or on behalf of an FOI body. It 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. There is no requirement to take a view on the consequences of the disclosure of those positions or that that disclosure would have an adverse effect on conduct by Government or the FOI body of its negotiations. However, such issues may be relevant to the public interest test in section 30(2).

An FOI body seeking to rely on section 30(1)(c) is required to identify the relevant negotiations at issue, and must show that the 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 such negotiations.

In its submissions, TII said the record at issue contains information that pertains to potential negotiation strategies by the Luas Finglas team in relation to Ravens-� Court. It argued that the release of the record would have a negative impact on any negotiations that may be involved in acquiring the land in the Ravens-� Court area and would also inform other potential land owners along the route of the method of negotiations entered into at this location and potentially give them an unfair advantage in dealing with TII and/or the National Transport Authority in this matter. It argued that releasing the record would inform the Ravens-� Court community of TII-�s mitigation and negotiation strategy in dealing with affected residents and may also be misleading in relation to one specific matter.

I accept that the release of the record at issue would involve the disclosure of details of proposed mitigation measures that might be followed, including details of the nature of potential negotiations. However, I am not satisfied that the disclosure of the record would involve the disclosure of 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 such negotiations.

Moreover, this Office considers that the possibility of the public misunderstanding information is, generally speaking, not a good cause for refusing access to the records of public bodies. Apart from anything else, such an argument seems to be based on an assumption, which we do 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.

Having carefully considered the contents of the record at issue, I find that section 30(1)(c) does not apply.

Decision

Having carried out a review under section 22(2) of the FOI Act, I hereby annul TII-�s decision. I find that it was not justified in refusing access, under section 29(1) or 30(1)(c) of the Act, to the risk register extract pertaining to the decision to route the Finglas Luas through Ravens' Court. I 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.
 

Stephen Rafferty
Senior Investigator