Whether the Council was justified, under sections 29(1) and/or 35(1)(a), in refusing access to the minutes of a Council meeting that was held -�in-committee-�

25 April 2023

Background

In a request dated 19 September 2022, the applicant sought access to the minutes of a Special Development Committee meeting held on 23 November 2021 and to the names of the people who were present. In a decision dated 12 October 2022, the Council refused the request under section 29(1) of the FOI Act. It said Special Committee Meetings are -�internal in-committee meetings as part of ongoing deliberative process around the County Development Plan-�. The applicant sought an internal review of the Council-�s decision. He said he was a resident who had been affected by a decision to allow a proposed development and that he was interested only in the information concerning rezoning of the relevant land. He said he had no interest in any other decisions taken at this meeting. On 10 November 2022, the Council again refused the request but varied the basis on which it had decided to withhold the information sought. It cited section 35(1)(a) of the FOI Act as the relevant ground for refusal. On 19 January 2023, the applicant applied to this Office for a review of the Council-�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 Council and by the applicant, and to the correspondence between the parties as set out above. I have also examined the record at issue. I have decided to conclude this review by way of a formal, binding decision.

Scope of Review

There is only one record at issue in this review, comprising the minutes of the meeting held on 23 November 2021. Having regard to the applicant-�s request for internal review and application for review by this Office, it is clear that he is only seeking release of the parts of the record that relate to discussions concerning a specified location. While the record at issue comprises 20 pages, I am satisfied that only the first 4 pages contain information of relevance to the request i.e. nothing from heading -�West Cork Municipal District-� on page 4 onwards is relevant. The Council confirmed this.

Moreover, during the course of the review, the Investigator asked the Council to indicate if it was relying on section 29(1) or section 35(1)(a), or both, as a basis for refusing the request. The Council provided a brief submission containing general comments around deliberative processes and information given in confidence.

In the circumstances, and for the avoidance of doubt, the scope of the review is concerned with whether the Council was justified in refusing access, under sections 29(1) and/or 35(1)(a) of the Act, to the relevant part of the record.

Preliminary Matters

Before I address the substantive issues in this case, I wish to make some preliminary comments.

First, in his application for review, the applicant described the decision to rezone agricultural land beside where he lived for building as -�dubious-� and -�against Government and County Council guidelines-�. He said that a biodiverse woodland area had been destroyed by heavy machinery in October 2022 and that he wanted to know whether the Councillors involved in the rezoning decision had voted for it with the full knowledge of the site, the infrastructure involved and the proposed point of access, or whether they had simply accepted -�the developer-�s word-�. Section 13(4) of the Act provides that in deciding whether to grant or refuse an FOI request, any reason that the requester gives for the request shall be disregarded. This means that this Office cannot have regard to the applicant's motives for seeking access to the information in question. Furthermore, this Office has no role in the investigation of complaints regarding the manner in which FOI bodies perform their functions generally, or to act as an alternative dispute resolution mechanism with respect to actions taken by FOI bodies.

Secondly, the minutes contained in the record at issue relate to a meeting that was held -�in-committee-�. This means that members of the public and representatives of the media were precluded from attending the meeting, as provided for in the Council-�s Standing Orders and in accordance with section 45 of the Local Government Act 2001. The Council initially stated to this Office that it generally refuses requests for minutes of recent in-committee meetings, unless the meeting is historic. When queried on this apparent policy of refusing such records as a class, it clarified that it meant that, in most cases, these meetings would contain sensitive deliberation matters and information from local representatives understood to be given in confidence. I think it is important to say at this stage that the FOI Act does not include a class-based exemption for minutes of meetings held in-committee. Any FOI request for minutes of such meetings should be considered on a case by case basis, with the decision to release or refuse the record requested being taken following consideration of the specific circumstances and the contents of the record at issue, in accordance with the provisions of the FOI Act.

Thirdly, in the course of the review, the Investigator invited the Council to make focused submissions in support of its position. She referred the Council to theSample Questionsavailable on this Office-�s website relevant to the exemptions claimed. As I have referenced above, the Council provided a brief submission containing general comments around deliberative processes and information given in confidence. It made no specific reference to the relevant sections of the FOI Act it was relying on and did not provide a comprehensive explanation of how the points it was making applied to the contents of the specific record at issue. Neither did it appear to have had any regard to the Sample Questions. These Sample Questions, as well as a series ofGuidance Notes, have been prepared by this Office to assist public bodies in providing focused and structured submissions to this Office in the course of a review and can reduce the need for additional over and back communication between this Office and the public body. The Sample Questions and Guidance Notes can also be a useful resource for public bodies in their processing of FOI requests at the first instance. I urge the Council to take appropriate measures to ensure that it has appropriate regard to these resources in the future.

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. However, that is not the end of the matter. I must also have regard to the findings of the Supreme Court inThe 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

Section 35: Information obtained in confidence

Section 35 is a mandatory exemption which provides for the withholding of certain records containing information given to an FOI body in confidence. In its internal review decision, the Council argued that the record was exempt from release under section 35(1)(a).

In order for section 35(1)(a) to apply, it is necessary to show the following:

• that the information was given to an FOI body in confidence, and
• that the information was given on the understanding that it would be treated by the body as confidential, and
• that disclosure of the information would be likely to prejudice the giving to the body of further similar information from the same person or other persons, and
• that it is of importance to the body that such further similar information should continue to be given to the body.

All four of these requirements must be satisfied for section 35(1)(a) to apply. Even then, the section is subject a public interest balancing test set out in section 35(3).

As stated previously, the Council made no specific arguments in relation to section 35 in its submission to this Office, except to say that in most cases in-committee meetings would contain information from local representatives understood to be given in confidence. In its internal review decision, it said that in-committee meetings are held in private, as required, in compliance with the standing orders of Cork County Council, and as allowed under section 45 of the Local Government Act. It said that in this instance the in-committee meeting was convened with the agreement of the Council for the purposes of progressing the necessary discussions and stages of the drafting of the County Development Plan.

Section 25(3) requires this Office to take all reasonable precautions to prevent the disclosure of exempt material in the course of a review. However, I do not believe that I am in breach of section 25(3) by providing the following description of the relevant part of the record. It contains: a list of all attendees at the meeting, both elected members of the Council and staff members; an agenda; a summary of inputs and presentations by staff members on the draft County Development Plan and the various steps and processes required to bring the draft plan to fruition; and a presentation from a staff member on the relevant Municipal District where the specified area is located, including issues arising from other meetings and proposed amendments and a summary of points raised in the ensuing discussion.

The first two requirements of section 35(1)(a) are that the information in the record must have been given to the FOI body in confidence and on the understanding that it would be treated as confidential. It is the circumstances in which the information was imparted and received that is important in determining whether these first two requirements of section 35(1)(a) are met, rather than the information itself necessarily having to be private, secret or confidential.

However, before considering the circumstances, it must first be established that information was -�given to an FOI body-�. Having examined the record, it is not at all apparent to me that it contains information given to the Council, in confidence or otherwise. Besides the agenda, the list of attendees, and administrative matters, the majority of the information contained in the record consists of updates, observations, and proposals presented by staff members of the Council to the elected Councillors. The Commissioner takes the view that in so far as information consists of opinions and observations formed by members of staff of an FOI body, the opinions and observations concerned are not 'imparted' to them by anyone. The only other persons in attendance at the meeting were elected members of the Council. The record contains a list of points that were raised and discussed at the meeting and I accept that some of these points may have been raised by Councillors, although they are not attributed to any individual. In its submission to this Office the Council referred to -�Information provided in confidence by councillors during these discussions at in-committee meetings with no members of the public present/allowed-�. It did not however specify what this information was and it is not apparent to me from an examination of the record. The onus is on the Council to demonstrate that the exemption claimed applies, and I am not satisfied that it has shown that the record contains information given to an FOI body.

In any event, it also seems to me that the third requirement for section 35(1)(a) to apply is not met in this case. That third requirements is that disclosure of the information would be likely to prejudice the giving to the body of further similar information from the same person or other persons. Given the roles and responsibilities of the individuals in attendance, I do not accept that the disclosure of the specific information at issue in this case would be likely to prejudice the giving to the Council of further similar information from the same person or other persons in the future, nor has the Council argued that the release of the records would be likely to give rise to such an outcome.

In the circumstances, I find that all four requirements for section 35(1)(a) to apply have not been met in this case, and that the Council has not justified its decision to refuse access to the record under section 35(1)(a). Accordingly, I do not deem it necessary to consider the public interest test at section 35(3).

Section 29: Deliberations of FOI bodies

Section 29(1) provides that an FOI body may refuse to grant access to a record 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, 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 body, be contrary to the public interest. Without prejudice to the generality of paragraph (b), the FOI body is required, in determining whether to grant or refuse to grant the request, to 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.

The exemption at section 29(1) thus has two requirements: the record must contain matter relating to the deliberative process, and its disclosure must 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. It is therefore important for FOI bodies to show to the satisfaction of this Office that both requirements have been met. It should also be noted that the exemption does not apply insofar as the record(s) contain any of the information or matter referred to in section 29(2) of the Act.

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 which requires the deliberative process to be ongoing; equally, the fact that a deliberative process is ongoing does not mean that the exemption automatically applies. However, the question of whether or not a deliberative process is ongoing may be relevant to the issue of the public interest.

In its original decision letter, the Council said that the meeting formed part of an ongoing deliberative process around the County Development Plan. In submissions to this Office, it said that in-Committee meetings are held to encourage open and frank discussions between elected representatives and the executive around important decisions that have to be taken, with the interest of the public very much at the core of these decisions.

I accept that the record at issue contains opinions, recommendations and options being considered and discussed by Council staff members and elected councillors in the context of preparing and finalising the County Development Plan which was then adopted on 25 April 2022 and came into effect on 6 June 2022. I am satisfied 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 Council must show that release of the record 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, as it provides that the exemption only applies if the granting of the request would be contrary to 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 its submissions to this Office, the Council said that in considering the release of the particular record, it had to take into account the following items which were discussed at the in-committee meeting:

• -�Discussions around zoning and/or re-zoning of land of the area concerned which may have negative implications for the public
• Potential future deliberations arising from comments recorded in this meeting which are sensitive, given in confidence and not yet open to public consultation or comments
• Information provided in confidence by councillors during these discussions at in-committee meetings with no members of the public present/allowed.-�

It went on to say that while it has no objections to releasing records when deliberations have already occurred, in this case the record contains opinions regarding possible future land re-zoning which would not serve the public interest because it is irrelevant to the current approved County Development Plan.

Having examined the record, I acknowledge that zoning /re-zoning is mentioned briefly as having been discussed at the meeting in relation to certain lands. However, the Council did not specify what the negative implication for the public would be if this information were to be released, or how it envisaged the release leading to this negative implication. Nor is any of this evident to me following a careful examination of the record.

In relation to the comments recorded in the meeting that the Council considers to be sensitive, given in confidence, and not yet open to public consultation or comments, the Council have not specified which comments in the record it is referring to, or how their release could give rise to a specific harm(s) that would be contrary to the public interest. Again, it is not evident to me.

The Council also said that the record contained opinions regarding possible future land re-zoning which would not serve the public interest because it is irrelevant to the current approved County Development Plan. In response to this point I would firstly note that the test in section 29(1)(b) is whether release of the information would be contrary to the public interest, not whether the information is relevant or not. Secondly, the Council hasn-�t specified the opinions that it is referring to, or what the specific harm that it considers may flow from release.

While the public interest test under section 35(3) is different to the one at 29(1)(b), in the absence of more detailed submissions from the Council, I have looked at its consideration of the public interest in its internal review decision, as an indicator of the Council-�s position. It said the factor it considered against release was -�to preclude the setting of precedence allowing the public and/or media access to the details of said in committee meetings which might obstruct the commission of duties being undertaken therein-�. I refer to my preliminary comments about class-based exemptions and note that FOI decisions do not set precedents, each request must be considered on its own merits. The Council did not elaborate as to what details of the in-committee meeting might obstruct the commission of these meetings in the future by their release, or how this obstruction might occur and it is not evident to me.

I have carefully considered the Council-�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 future deliberative processes of the Council, particularly in relation to discussions at in-committee meetings around zoning matters. 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.  

Having considered the matter, and having regard to the requirements of section 22(12)(b) of the 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.  

Decision

Having carried out a review under section 22(2) of the FOI Act, I hereby annul the Council-�s decision. I find that it has not justified its decision to refuse access to the part of the record relevant to the applicant-�s request, and I direct its 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.
 

Stephen Rafferty
Senior Investigator