Whether the Department was justified in refusing access to part of a record of minutes of a meeting which took place on 4 February 2021 on the basis of section 29(1) of the FOI Act

20 June 2023

Background

In a request dated 1 October 2022, the applicant sought access to the following:

1. Agenda, minutes and actions from a meeting on the 4 February 2021 that was held in relation to the Civil Liability Act 1961 (the CL Act),
2. An update on the progress to date of each action coming out of the meeting,
3. The dates and times of any planned future meetings in relation to the ongoing examination of the CL Act,
4. The date by which the ongoing examination of the CL Act is planned to be completed.

I understand that the Department engaged with the applicant to clarify which meeting he was referring to. I also understand that he confirmed that it was the meeting referred to in a response to a Parliamentary Question (PQ) on 8 September 2022 (available here:https://www.oireachtas.ie/en/debates/question/2022-09-08/1435/). Various civil legislation matters were discussed at the meeting including issues arising in relation to the CL Act. In a decision dated 28 October 2022, the Department refused his request. The Department identified one record relating to part 1 of his request, which comprised the minutes of the meeting on 4 February 2021. It refused access to this record on the basis of section 29 of the FOI Act. The Department described the searches undertaken to locate additional relevant records and refused access to an agenda for the meeting on the basis of section 15(1)(a). In relation to part 2 of his request, the Department stated that there was "no further update to the material provided in response to the above PQ". The Department made no reference to parts 3 and 4 of his request. On 29 October 2022, the applicant made an internal review request. In a decision dated 30 November 2022, the Department affirmed its original decision on the same basis.

On 4 December 2022, the applicant sought a review by this Office of the Department's decision to refuse his request under section 29 of the FOI Act. He queried the comment in the records schedule provided that the record identified by the Department contained material outside of the scope of his request. He also indicated that he understood that the Department had refused parts 3 and 4 of his request under section 29 of the FOI Act.

In its submissions to this Office, the Department confirmed that it intended to rely on section 15(1)(a) in respect of parts 2, 3 and 4 of the applicant's request and acknowledged that this was unclear in its original and internal review decisions. It also clarified that the single record identified only related to the applicant's request in part, as the meeting on 4 February 2021 dealt with a number of matters.

During the course of this review, the Investigating Officer spoke with the applicant. He confirmed that he was seeking access to the minutes of the meeting insofar as they relate to the CL Act. He also confirmed that he was not seeking a review of the Department's reliance on section 15(1)(a) to refuse access to additional records. 

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 applicant's comments in his application for review and the submissions made by the Department in support of its decision. I have also had regard to the contents of the record concerned. I have decided to conclude this review by way of a formal, binding decision.

Scope of Review

This review is solely concerned with whether the Department was justified in refusing access to the relevant information contained in the minutes of the meeting held on 4 February 2021, under section 29 of the FOI Act.

Preliminary Matters

It is important to note that this Office has no remit to investigate complaints, to adjudicate on how FOI bodies perform their functions generally, or to act as an alternative dispute resolution mechanism with respect to actions taken by FOI bodies.

For the benefit of the applicant, it is important to note that while the purpose of the FOI Act is to enable members of the public to obtain access to information held by public bodies, the mechanism for doing so is by accessing records held by those bodies. In other words, a person wishing to obtain information from a public body must make a request for records that contain the information sought. Requests for information or for answers to questions, as opposed to requests for records, are not valid requests under the FOI Act, except to the extent that a request for information or for an answer to a question can reasonably be inferred to be a request for records.

Analysis and Findings

Section 29
Section 29(1) provides that a head may refuse to grant an FOI request (a) if 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, 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) the granting of the request would, in the opinion of the head, be contrary to the public interest, and, without prejudice to the generality of paragraph (b), the head shall, in determining whether to grant or refuse to grant the request, consider whether the grant thereof would be contrary to the public interest by reason of the fact that the requester concerned would thereby become aware of a significant decision that the body proposes to make.

These are 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 FOI bodies to show to the satisfaction of the Commissioner that both requirements have been met.

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.

There is nothing in the exemption itself which requires the deliberative process to be ongoing but this issue may be relevant to the issue of the public interest. The Commissioner has found 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 was not to say that such disclosure is always, as a matter of principle, against the public interest.

In its submissions to this Office, the Department provided some background to this case. It said that under section 48 of the CL Act, a wrongful death action may be brought by the dependents of an injured person after his/her death. The CL Act also allows for a personal injury action to be brought by an injured person. However, the Department stated that it was not possible for both of these actions to be brought arising from the same wrongful act. It also said that inMorrissey v HSE[2020] IESC 6, the Supreme Court held that the dependents of a plaintiff who has brought an action for personal injury cannot, while the plaintiff is still alive, claim for the future loss of services which the plaintiff might have been expected to provide for his/her family. The Department stated that the Court found that if the law in this area is to be changed, it would have to be done by way of legislation, rather than by an evolution in case-law. The Department said that issues arising on foot of this judgment, are under ongoing examination. It also said that any proposals for legislation in the area would require careful consideration and consultation with a number of parties.

The part of the record identified as relating to the applicant's request in this case is a concise note of a discussion held regarding issues arising. The minutes set out suggestions made and refer to possible options as to how to proceed. While the information concerned is not particularly comprehensive, I accept that it sets out some aspects of matters to be considered. In the circumstances of this case, I am willing to accept that the record contains matter relating to a deliberative process and that section 29(1)(a) applies. However, this is not the end of the matter as for the exemption to apply, the Department must show that release of the record would be contrary to the public interest.

Section 29(1)(b) 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, as it provides that the exemption only applies if the granting of the request would becontraryto the public interest. For release to be contrary to the public interest, this Office would generally expect the body to identify a specific harm to the public interest flowing from release. A mere assertion without supporting evidence is not sufficient to satisfy the requirement that granting access to the record would be contrary to the public interest.

In his application to this Office, the applicant argued that any deliberative process being carried out by the Department did not appear to be ongoing, as "only one formal meeting has happened in nearly two years". His view was that if no records existed relating to further meetings or a plan to conclude the Department's examination of the CL Act, that "any deliberative process in the Department is not very active nor formal".

The Department informed this Office that work had been undertaken as part of the deliberative process since the meeting on 4 February 2021. Its position was that records relating to this work did not fall within the scope of the applicant's request, as it did not arise from an action point set out in the minutes concerned.

In its submissions to this Office, the Department also stated that it considered a number of factors in favour of the release of the information sought, including the public interest in "openness and transparency" and the "right of the public to have access to information". It said that it had regard to the public interest in the "accountability of administrators and scrutiny of decision making processes", as well as the "need for the public to be better informed and more competent to comment on public affairs". It stated that the information concerned would "make a valuable contribution to the public debate on the issue" and that it would "demonstrate the thinking behind the decision".

In relation to the public interest against the release of the information concerned, the Department said that release would "prejudice a decision yet to be made by the Department", and "place the Department at a disadvantage in the current process which has yet to conclude". It contended that the premature release of the record (while the deliberative process was ongoing) "would impair a future decision", "could negatively affect the decision making process", and/or "would impair the integrity and viability of the decision making process to a significant or substantial degree without [a] countervailing benefit to the public".

The Department said that it considered and gave appropriate weighting to the factors set out above and that it concluded "that on balance, the granting of access would be contrary to the public interest". It said that it had particular regard to the fact that the review was ongoing and not yet complete. The Department also stated that the deliberative process at issue involved "legal research, policy analysis, and consultation with relevant Government Departments, the Office of the Attorney General, and State bodies".

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 the Commissioner that its decision to refuse access to the record sought was justified.

I note that in its original and internal review decisions, the Department appeared to carry to a balancing exercise when considering the public interest, rather than a consideration whether release of the information in the record at issue would becontraryto the public interest.

It seems to me that the crux of the Department's argument in this case is that the release of the record at this time would somehow harm the deliberative processes relating to how to deal with the matters arising on foot of the relevant Supreme Court judgment. It contended that release would prejudice its decision and/or somehow negatively impact its decision-making process, however it has not explained precisely what information in the record concerned could give rise to these harms.

I have carefully considered the Department's arguments and examined the record. It seems to me that it has essentially made broad, high-level and non-specific claims that release of the record would harm its future or continuing deliberative processes in relation to the CL Act. However, it hasn't explained the nature of the harm that it envisages, tied its arguments to specific information in the record or explained how the release of such information would be contrary to the public interest. 

I have carefully examined the information in question, and it is not evident to me how the release of this particular record, at this time, 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 Department has not satisfactorily shown that the release of the information 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) does not apply.

Accordingly, I direct the release of page 1 of the record concerned from "Note of Meeting" to "at this time".

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 to release the part of the record relating to the applicant's request under section 29 of the FOI Act, and I direct its release, as set out above.

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.

Sandra Murdiff
Investigator