Whether the Council was justified in refusing access to video recordings of two Special Planning Meetings (SPMs) on the grounds that sections 29, 30(1) and 31(1)(a) of the FOI Act apply

13 June 2023

Background

All references to the applicant in this decision should be taken to include engagements and correspondence with the company-�s solicitors. The applicant is a company that owns property that was considered by the Council for re-zoning in the context of the Council-�s Development Plan 2022-2028 (the Development Plan). The details of the Development Plan are available on the Council-�s websitehttps://www.corkcity.ie/en/cork-city-development-plan/.

I understand that three SPMs were held as part of the process in finalising the Development Plan -� on 15 March, 15 June and 27 June 2022. The meetings were held in public and live-streamed on the relevant day. The approved minutes of these meetings are also available on the Council-�s website:https://www.corkcity.ie/en/council-services/councillors-and-democracy/meetings-of-the-city-council/full-council-meetings/full-council-meetings-minutes/2022.html

On 1 July 2022, the applicant made a FOI request seeking the following:

1. A copy of the audio/video recording of a Council meeting on 27 June 2022 and all draft and approved minutes,
2. A copy of the audio/video recording of a Council meeting on 15 March 2022 and all draft and approved minutes,
3. Records relating to the decision-making process and the basis upon which the decision was made not to adopt proposed Amendment 2.73 of the Development Plan.

On 25 July 2022, the Council refused access to the draft minutes of the meetings on the grounds that section 15(1)(a) of the FOI Act applied. It refused access to the approved minutes of the meetings on the grounds that the records were publicly available under section 15(1)(d). The Council refused access to the video recordings sought in full on the basis of sections 29, 30 and 31 of the FOI Act. I note that there was some confusion as to the relevant subsections relied upon, but the Council later clarified to this Office that it intended to rely on sections 29(1), 30(1)(c) and 31(1)(a). It did not refer to part three of the applicant-�s request.

On 23 August 2022, the applicant applied for an internal review, setting out extensive arguments. On 8 September 2022, the Council issued an internal review decision which appeared to affirm its original decision, although no details or explanation were provided. On 18 November 2022, the applicant applied to this Office for a review of the Council-�s decision. The applicant confirmed to this Office that it is only seeking access to the video recordings of the two meetings in question.

During the course of this review, the Investigating Officer asked the Council to clarify matters relating to its internal review decision. In response, the Council-�s FOI Officer stated that the internal reviewer did not address the video records in error, but that the Council was relying on sections 29, 30 and 31 of the FOI Act to refuse access to these records. The Investigating Officer also wrote to the Council inviting it to make submissions in support of its decision in this case, however the Council informed this Office by telephone and email on 16 January 2023 that it would not be making submissions in this review.

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 correspondence between the Council and the applicant, and to communications between this Office and both parties 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 the Council was justified under sections 29, 30 and 31 of the FOI Act in refusing to release the video recordings concerned.

Preliminary Matters

Before I address the substantive issues arising, I would like to make the following preliminary comments.

• The Council-�s handling of the applicant-�s request and its subsequent engagements with this Office were wholly unsatisfactory and fell well below the required standards. The original decision is unclear and confusing. It fails to explain the reasons for the refusal beyond quoting the exemptions relied upon. I also note that the Council mistakenly stated that it was relying on subsections 30(1)(a) and 31(1)(b), when it fact it relied upon and quoted the correct text of sections 30(1)(c) and 31(1)(a).

Furthermore, the Council-�s internal review decision is also far below the standard I would expect from a public body. The internal reviewer referred to the comprehensive internal review request made by the applicant and its -�contention that sections 29, 30 and 31 of the Act, have been misapplied-�. He then stated that, -�after due consideration-� he was -�upholding the decision to refuse on administrative grounds to grant FOI requests [sic]-�. This decision appeared to solely relate to the Council-�s refusal to release records on the basis of sections 15(1)(a) and (d) and also appeared to overlook its refusal to release records on the basis of sections 29, 30 and 31. However, as noted above, the Council has confirmed to this Office that it intended to affirm the entirety of its original decision.

Section 13(2)(d) of the FOI Act sets out that public body must provide reasons for refusal where appropriate. I would expect the Council to have regard to this provision when issuing original and internal review decisions in future.

• In its consideration of the relevant public interest tests in relation to sections 29 and 30, I note that the Council referred to its Supplementary Standing Orders regulating the proceedings of remote meetings and its obligations under the General Data Protection Regulation (GDPR). This Office has commented upon the interplay between the FOI Act and data protection legislation in a number of previous decisions. For the benefit of the Council, I will repeat those comments here.

Article 86 of the General Data Protection Regulation provides that personal data in official documents held by a public authority or a public body or a private body for the performance of a task carried out in the public interest may be disclosed by the authority or body in accordance with Union or Member State law to which the public authority or body is subject in order to reconcile public access to official documents with the right to the protection of personal data pursuant to the Regulation. Section 44 of the Data Protection Act 2018 provides that, for the purposes of Article 86, personal data contained in a record may be disclosed where a request for access to a record is granted under and in accordance with the FOI Act 2014 pursuant to an FOI request.

In short, data protection legislation does not prohibit public bodies from processing FOI requests where the records sought contain personal information relating to individuals other than the requester. The FOI Act is entirely independent of data protection legislation and FOI requests for access to records must be processed in accordance with the provisions of the FOI Act. Indeed, the FOI Act provides for the release of personal information of third parties in certain circumstances, including where the public interest in granting the request outweighs, on balance, the public interest in protecting the privacy rights of the individuals concerned. Any concerns a public body has about the release of personal information relating to individuals other than the requester can and should be addressed by considering the applicability of the exemption contained in section 37 to the records at issue. I note that the Council has not made such arguments here.

• Part 3 of the applicant-�s request does not form part of this review. However, for the benefit of the applicant, I would point out that section 10 of the FOI Act may be relevant. Section 10 provides that a person who is affected by an act of an FOI body, and has a material interest in a matter affected by the act or to which it relates, is entitled to a statement of reasons for the act as well as a statement of any findings on any material issues of fact made for the purposes of that act.
• Finally, 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 Council to satisfy the Commissioner that its decision to refuse access to the records was justified. As noted above, the Council has decided not to make any submissions to this Office in support of its decision in this case, However, that is not the end of the matter. I must also have regard to the findings of the Supreme Court in The Minister for Communications, Energy and Natural Resources and the Information Commissioner & Ors [2020] IESC 57 ("the Enet Case"). In that case, the Court noted that while the presumption places an onus on the FOI body to justify refusal, that does not mean that the conclusion is always that disclosure is to be ordered. The Commissioner must adjudicate the merits of the decision to refuse by reason of an analysis of the records and the interests engaged, which might suggest either disclosure or refusal.

Analysis and Findings

During the course of this review, the Investigating Officer drew the Council-�s attention to a previous OIC decision in caseOIC-110190-W7X6G1(available on our websitewww.oic.ie), where the Senior Investigator annulled the decision of Meath County Council to refuse access to copies of audio and video recordings of SPMs held in public. She invited the Council to have regard to this decision in its submissions. However, as noted above, the Council informed this Office that it did not wish to make submissions in support of its decision in this case.

Section 29 - Deliberative process

Section 29(1) provides for the discretionary refusal of a request if (a) 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. 

Deliberative Process

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.

The applicant was of the view that the type of deliberations protected by section 29 were closed-door or private deliberations, which did not apply in this case.

However, in the circumstances of this case, I am satisfied that the records at issue contain opinions, recommendations and options being considered and discussed by Council staff members and/or elected councillors in the context of preparing and finalising the Plan. I am satisfied that the records contain matter relating to a deliberative process and that section 29(1)(a) applies. Nonetheless, this is not the end of the matter as for the exemption to apply, the release of the records must also be contrary to the public interest.

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 FOI 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.

I note that the Council appeared to undertake the incorrect public interest test in its consideration of section 29 in its original decision, as it stated that -�[h]aving balanced-� the factors identified, it found there to be -�greater weight favouring [the] withholding of the recordings-�. However, as noted above, the correct test is whether release would becontraryto the public interest.

In its original decision, 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 and the need to -�ensure democratic control to the greatest extent possible over the increasing regulation by public bodies of the affairs of the ordinary citizen-�. Against release, the Council stated that it had considered the public interest -�in the need to avoid serious damage to the proper working of government at the highest level, and broader community interests must be considered, as distinct from those of the applicant and the subject of the record-�. The Council has not provided any submissions or made any attempt to explain how the factors against the public interest apply in this case, or what it meant in the context of the specific records withheld.

The SPMs were both held in public and were attended by elected representatives who were voting on amendments to the Development Plan. I cannot see how the release of recordings of meetings of elected representatives, held in public, could possibly create serious damage to the -�proper working of government at the highest level-�. Similarly, it is difficult to see what broader community interests the Council is referring to and how such interests would favour the records being withheld on public interest grounds.

The Council stated that monthly council meetings are public meetings to which members of the public and media have the right to attend. It said that meetings are live-streamed to allow for greater public participation regardless of location. It stated that this allows -�everyone the opportunity to take part and ensures openness and transparency of Council business, therefore ensuring democratic control in as far as possible over the workings of the Council-�. It also stated that the approved minutes of all Council meetings are published on its website and that -�only matters of importance and relevance to decisions taken-� are recorded in the minutes. Essentially, the Council appeared to be of the view that matters which arose at meetings, other than those recorded in the approved minutes, were not -�of public interest-�. The Council seemed to be arguing that it had already satisfied the public interest in transparency and openness by publishing the minutes of the meeting.

In addressing the public interest in its original decision, the Council referred to Item 8 of the City Council Supplementary Standing Orders Regulating the Proceedings of the Council in holding remote meetings. Item 8 states that -�subject to compliance with GDPR, the meetings administrator may facilitate the recording of meetings for the purpose of taking the minutes. However, this recording shall only be used for this purpose and will be deleted once the minutes are agreed-�. The Council argued that the staff and Councillors in attendance at the meetings had an -�expectation-� that the recordings would not be used for the purpose of being shared with a third party. However, as noted above, FOI Act is entirely independent of data protection legislation and FOI requests for access to records must be processed in accordance with the provisions of the FOI Act.

In its internal review request, the applicant argued that it was well established that the public interest weighs heavily in favour of transparency and unfettered public access to records concerning the decision-making processes in planning matters. I note that the applicant also stated that it had been -�prejudicially affected by the outcome of the meeting-� on 27 June 2022. However, this appears to me to be a private, rather than a public interest in the release of the records sought.

I have had close regard to the content of the records concerned. I accept that the videos at issue relate to the deliberative processes of the Council. However, it seems to me that of most 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 the absence of any evidence or coherent argument to the contrary, and having regard to the content of the records concerned, I cannot see how the release of recordings of SPMs which were held in public, with all participants being aware that they were being live-streamed, would be contrary to the public interest.

Having considered the matter, and having regard to the requirements of section 22(12)(b) of the FOI Act as outlined above, 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 the requirement at section 29(1)(b) has not been met and that section 29(1) cannot 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.

For section 30(1)(c) to apply, a negotiation must have been carried out, or being, or to be carried out. An FOI body relying on section 30(1)(c) should identify the relevant negotiations at issue. The Council has not explained what negotiations it is referring to in relying on this exemption.

In this case, it seems to me that the purpose of the meetings was to fulfil the statutory requirements regarding the completion of the Development Plan. As set out above, the meetings were held in public and live-streamed and minutes of the meetings are available online. The Development Plan itself has been published online. In the circumstances of this case, I fail to see how the release of the records at issue could reasonably be expected to disclose positions taken, or to be taken, or plans, procedures, criteria or instructions 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. Having regard to the content of the videos and in the absence of any evidence or argument in support of the Council-�s decision, I find that the Council was not justified in relying on section 30(1)(c) in refusing access to the records sought.

As such, there is no requirement for me to consider the public interest test in section 30(2).

Section 31(1)(a)

Section 31(1)(a) provides for the mandatory refusal of a request if the record concerned would be exempt from production in proceedings in a court on the ground of legal professional privilege. Legal professional privilege enables the client to maintain the confidentiality of two types of communication:

• confidential communications made between the client and his/her professional legal adviser for the purpose of obtaining and/or giving legal advice (advice privilege), and
• confidential communications made between the client and a professional legal adviser or the professional legal adviser and a third party or between the client and a third party, the dominant purpose of which is the preparation for contemplated/pending litigation (litigation privilege).

The concept of "once privileged always privileged" applies where privilege is based on legal advice privilege, but not where it is based on litigation privilege. Thus, unless otherwise lost or waived, legal advice privilege lasts indefinitely. For advice privilege to apply, the communication must be made between a client and his/her professional legal adviser in a situation where the legal adviser is acting in a professional capacity.  Furthermore, this Office is of the view that privilege attaches to records that form part of a continuum of correspondence that results from the original request for advice.

In its original decision, the Council stated that the records at issue were being refused under section 31(1)(a), as it had been -�put on notice that legal proceedings may be instigated-�. As noted above, it made no submissions to this Office in support of its decision.

In its internal review request the applicant stated that legal privilege cannot apply to the recordings. It said that the records were not created for the dominant purpose of litigation or for the purposes of legal advice. The applicant also argued that litigation privilege cannot subsequently be applied after the event and that the recordings do not contain any legal advice.

As set above, the records withheld are video recordings of public meetings of elected representatives in the context of discussing and amending the Plan. Both meetings were held in public and live-streamed to facilitate wider participation. I cannot see how either legal advice privilege or litigation privilege would apply to the records. As noted above, 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 regard to the content and the context of the records concerned, I find that the Council has not satisfactorily shown that the records would be exempt on the ground of legal professional privilege.

Accordingly, I find that the Council was not justified in relying on section 31(1)(a) in refusing access to the video recordings sought.

Decision

Having carried out a review under section 22(2) of the FOI Act, I hereby annul the Council-�s decision. I find that the Council has not justified its decision to refuse access to the records sought on the basis of sections 29, 30 and 31 of the FOI Act and I direct their release.

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.
 

____________________

Sandra Murdiff
Investigator