Whether the Department was justified in refusing access, under sections 29(1), 30(1)(a), (b) and (c), and 36(1)(b), to correspondence on a senior and ministerial level between the Department and the University of Limerick

14 June 2023

Background

Following correspondence between the parties, the applicant submitted a revised request to the Department in June 2022 for access to all correspondence on a senior and ministerial level between the Department and University of Limerick (UL) in relation to governance, capital planning and State funding, between 13 June 2021 and 11 May 2022.

On 19 August, the Department part-granted the request. It refused access to a number of records, in whole or in part, under sections 29(1), 30(1)(a), (b) and (c) and 36(1)(b) of the Act. The applicant sought an internal review of that decision. On 11 October 2022, the Department issued its internal review decision, in which it affirmed the original decision. On 10 November 2022, the applicant sought a review by this Office of the Department-™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 Department and UL, and to the applicant-™s comments during the course of her engagement with the Department and with this Office. I have also had regard to the contents of the records at issue. 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 dated 30 November 2022, it forwarded to this Office when providing copies of the records at issue.

Scope of Review

The Department refused access to records 1, 3, 5, 11, 12, 13, 18, 19, and 20 under section 29(1) of the Act. It refused access to record 8 under sections 30(1)(a) and (c) and 36(1)(b). It redacted certain information from record 9 under section 30(1)(c). During the course of the review, the Department said that on further review, it considered records 3, 11, 12, 13, 18 and 19 to fall outside the scope of the original request, as they do not comprise correspondence between the Department and UL. Having examined the records, I accept this to be the case.

During the course of the review, it was also noted that the information contained in records 1, 5 and 20 had been the subject of discussion during a Public Accounts Committee meeting. Accordingly, it was determined that the majority of the information was available in the public domain. Following engagement with the Investigator, the Department agreed to release the records to the applicant subject to the removal of any personal information. The applicant confirmed that she was satisfied with the records released, and was not seeking the personal information.

Accordingly, the scope of this review is concerned solely with whether the Department was justified in its decision to refuse access to record 8 under sections 30(1)(a) and (c) and 36(1)(b), and to information in record 9 under section 30(1)(c).

Preliminary Matters

Although I am obliged to give reasons for my decision, section 25(3) of the FOI Act requires me to take all reasonable precautions in the course of a review to prevent disclosure of information contained in an exempt record. This means that the extent to which I can describe the contents of the records is limited.

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

Analysis and Findings

Section 30(1) -“ Functions and Negotiations of FOI Bodies

The Department has refused access to record 8 on the basis of section 30(1)(a), (c) and 36(1)(b), and partially granted access to record 9, withholding three paragraphs on the basis of section 30(1)(c). Having considered the contents of both records, I consider section 30(1)(c) to be the more relevant exemption provision and as such I will consider that exemption first.

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.

An FOI body relying on section 30(1)(c) should identify the relevant negotiations at issue. The Oxford English Dictionary defines "negotiation" as "the action or business of negotiating or making terms with others". It goes on to define the verb "negotiate" as "to hold communication or conference (with another) for the purpose of arranging some matter by mutual agreement; to discuss a matter with a view to some settlement or compromise".

Relevant factors in considering whether there is, or was, a negotiation include whether the FOI body was trying to reach some compromise or some mutual agreement. This Office also accepts that, generally speaking, proposal-type information relating to a public body's negotiations would be exempt under section 30(1)(c). In deciding whether there are negotiations for the purpose of section 30(1)(c), factors to consider include, for example, whether there is any proposal for settlement or compromise, any indications of 'fall-back' positions, information created for the purpose of negotiations, the FOI body-™s negotiating strategy, or an opening position with a view to further negotiation.

Record eight concerns a briefing note for the attention of the Minister of the Department of Housing in respect of a live proposal submitted by the University in conjunction with Clare County Council. The proposal relates to the development of a Strategic Development Zone (SDZ) on its campus. The briefing note provides an overview on the background and development of the project, in addition to disclosing certain strategies and suggesting potential uses for the site.  

According to submissions provided by both the University and the Department, the matter is one which remains under adjudication by the Department, and an outcome on the application is awaited. Both parties have objected to the release of the briefing documents while consideration of the application is underway.

In its submissions to this Office, the Department contends that negotiations are ongoing in respect of the above matter, and that the proposed plans taken by the University and Council are reflected in the record in question, and that these form a key part of the decision making process by the Department. The University has expressed concern that release of the briefing document at this time would prematurely bring the live application and the details of proposals and approaches into the public arena, thereby potentially opening it up to public assessment scrutiny and potential political canvassing, which could result in an unfair intrusion into the live deliberative process underway within the Department.

The University argues that the document contains key information related to the anticipated growth and expansion of the University, and details of plans relating to the cultivation of future relationships, future collaboration and partnership goals and the development of teaching and research collaboration models and partnerships. It also points out that if successful, the SDZ development is anticipated to have wide and far-reaching impacts in terms of infrastructure, academic and research offerings, local and regional demographics.

While certain information on this project is already available in the public domain in the form of news articles and press releases, that information is of a high -“ level nature, in that it discloses that a plan for an economic strategic development zone is under way and contains detail on its potential for job growth in the region. It also appears that a lot of the information in the public domain came from the press release which the University published in February 2022 following the submission of the application to the Department. The briefing note contains far more detailed and sensitive information around the project. It is worth noting that I am restricted in the description of the record which I can give by virtue of section 25(3) of the FOI Act.

Having regard to the record concerned, it is my view that the record could potentially disclose sensitive details of proposed plans for the development of a SDZ. The document details proposals and strategies relevant to the live completion and consideration of the project.  The document also sets out information relating to identified challenges and proposed novel approaches regarding research and academic engagement that the University has argued are not yet fully developed.

I also note from the press release which the University issued, that it was anticipated that The Minister for Housing, Local Government and Heritage would consult with Limerick City and County Council, residents and other interested parties before making any decision in relation to designation. There are also reports of engagement with the Office of the Planning Regulator in April 2022 in relation to the matter, and to recommendations to the Clare Development Plan on foot of objections to the project. It indicates that should further detailed information on the University-™s proposals or ideas for development become available it will likely become the subject of debate. Accordingly, it appears that there are a number of stakeholders involved in consultation on the matter overall and that consideration of various matters are ongoing between the parties.  In all the circumstances of this case, I accept that it is likely that the positions and plans, procedures, criteria or instructions of the University set out in the record at issue would be relevant to future negotiations the University and Department will have to engage in with other parties to address the development of the SDZ. 

Record nine relates to a briefing on ongoing collaboration of Higher Education Institutions in the Midwest. The briefing note contains a range of detail on collaboration, access engineering etc. Three paragraphs from the record which contain information on entrepreneurship, creativity and design and the briefing conclusion has been redacted. The Department argues that those sections  provide details of current and proposed future collaborations between the University of Limerick and other organisations. It argues that document includes examples of collaborative activity, plans and engagement and details of early-stage funding applications.

It is clear from the cover note to the Minister that both parts of the briefing note relate to separate processes. Having considered the information, which has been released and the information which has been withheld as part of the second briefing document, it is not clear to me that the processes described are still ongoing, or what negotiations they are subject to. Information which has already been released from the document contains details of collaborations between various institutions, and the plans and engagement for same. The Department has not clarified why the redacted information is any more sensitive than the released information. In addition, the descriptions given are of a high level nature, and do not give any details as to what the projects entail. I sought clarity from the University on the negotiations in question, however, the University failed to provide a response.

Accordingly, I am not satisfied that the Department has shown that record 9 forms part of a live negotiation with an FOI body, it would appear to me that the record constitutes an update on third party work being carried out between the University and other collaborators. On that basis, I do not accept that the record reveals the positions taken (or to be taken) plans etc. used or followed (or to be used or followed) by the Department (or any other FOI body) for the purposes of section 30(1)(c). On that basis, I direct the release of this record in full.

Section 30(2)

As I have found section 30(1)(c) to apply to record 8, I am required to consider section 30(2) in respect of this record. Section 30(2) provides that section 30(1) shall not apply if the public interest would, on balance, be better served by granting than by refusing to grant the FOI request concerned.

In its submissions to this Office, the Department has argued that the application being live is a key public interest factor against release. It notes that the premature release of information -œto the world at large- would unduly and negatively intrude on the application process and could contaminate the decision making process. It argues that this in turn could prejudice the outcome. The applicant did not provide submissions on the matter.

While I consider that there is an interest in the transparency, accountability, and the openness of Government workings in general, I note that there is a large amount of information publically available on this matter already. Noting the submissions made and contents of the records, I am of the view that there is also a public interest in affording the University, Council and Department the space to effectively deliberate on the proposal without undue interference. This includes granting them the space to fully consider options and engage in future negotiations as appropriate. I find that the public interest, would not, on balance, be better served by the granting of access to record eight at this time. 

As I have already found that the relevant records are exempt under the provisions of section 30(1)(c) of the FOI Act, I do not need to consider section 36(1)(b).

Decision

Having carried out a review under section 22(2) of the FOI Act, I hereby vary theDepartment-™s decision. I find that the Department was justified in refusing access to records 8 on the basis of section 30(1)(c). I find however that the Department was not justified in refusing access to record 9 on the basis of 30(1)(c) and direct the release of this record in full to the applicant.  

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 by the applicant not later than eight weeks after notice of the decision was given, and by any other party not later than four weeks after notice of the decision was given.

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Rachael Lord
Investigator