Whether the Department was justified, under section 29 of the FOI Act, in refusing access to certain draft documents relating to the development of the Great Western Lakes Management Plan

10 October 2023

Background

The website of Inland Fisheries Ireland (IFI) describes Loughs Corrib, Mask, Carra, Conn, Cullin, Arrow and Sheelin, collectively known as the Great Western Lakes, as some of the best wild brown trout fisheries in Europe. In a request dated 4 January 2023, the applicant, on behalf of an organisation of which he is a member, sought access to records that preceded a public consultation process initiated by Inland Fisheries Ireland (IFI) on the management of the Great Western Lakes. Specifically, he sought three draft versions of a management plan for the Great Western Lakes and a copy of specific correspondence, all of which had been referred to by the Minister for the Environment, Climate and Communications in written answers to Dáil questions on various dates in April and May 2022.

On 31 January 2023, the Department part-granted the request having identified four relevant records. It part-granted access to record 3, releasing only the part of the record that fell within the scope of the request. It refused to release records 1 and 2 under section 29(1), and refused to release record 4 under section 15(1)(d) on the basis that it was already publicly available. On 7 February 2023, the applicant sought an internal review of the Department-�s decision. He made a number of points about the contents of the version of the draft management plan that was published as part of the consultation process and what he described as ambiguity in that draft. On 2 March 2023, the Department issued an internal review decision in which it said it was varying the original decision, -�by granting access to records 1 and 2 after the conclusion of IFI-�s consultative process on the draft Long Term Management Plan for the Great Western Lakes-�. It said that it would release these records to him by email on publication of the adopted plan. On 24 March 2023, the applicant applied to this Office for a review of the Department-�s decision.

The records have not been released to date and 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, by IFI and by the applicant. I have also had regard to the contents of the records concerned. I have decided to conclude this review by way of a formal, binding decision,

Scope of Review

In his application to this Office, the applicant sought a review of the Department-�s decision to refuse to release records 1, 2 and 4. While the applicant accepted that record 4 was available online (athttps://www.fisheriesireland.ie/news/public-consultations/western-lakes-plan), he raised various questions about the content of the record itself. I explained to the applicant that my remit in carrying out this review under the FOI Act was limited to the question of whether or not the Department was justified in refusing to release the records sought. As I am satisfied that record 4 is already in the public domain, there is nothing further to decide on and I have omitted it from the scope of the review.

While the Department purported to vary its decision in relation to records 1 and 2 by agreeing to release them at a future point in time, to my knowledge it has not released them to date and they remain refused under section 29. This review is therefore concerned only with whether the Department was justified, under section 29, in refusing access to these two records.

Preliminary Matters                                                                       

Before addressing the substantive issues, I wish to make some preliminary comments.

Firstly, it is important to note that a review by this Office is considered to be -�de novo", which means that in this case, it is based on the circumstances and the law as they pertain at the time of the decision and is not confined to the basis upon which the FOI body reached its decision.

Secondly, in his submissions to this Office, the applicant raised concerns about the integrity of the consultation process and questioned various parts of the draft management plan for the Great Western Lakes. Section 13(4) of the Act provides that in deciding whether to grant or refuse a 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, except in so far as those motives reflect what might be regarded as public interest factors in favour of release of the information where the Act requires a consideration of the public interest.

Finally, this Office has no remit to investigate complaints regarding the manner in which FOI bodies perform their functions generally, or to act as an alternative dispute resolution mechanism in respect of actions taken by FOI bodies.

Analysis and Findings

The records at issue

The Department said that IFI was formally asked by the Minister to develop a comprehensive, evidence-based management plan for the Great Western Lakes. The IFI said that this plan is currently in the later stages of a Strategic Environmental Assessment (SEA) and has already been subject to two separate public consultation processes.

Against this background, records 1 and 2 are earlier drafts of the draft Long Term Management Plan for the Great Western Lakes June 2022 (record 4) which was published online as part of the first public consultation process which took place from 9 August to 20 September 2022. Records 1 and 2 are drafts dated, respectively, October 2021 and February 2022. According to the Department, these drafts were provided to the Minister to keep him apprised of progress in the development of the long term management plan.

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 and (b) granting the request would be contrary to the public interest. Section 29 also provides that, without prejudice to the generality of paragraph (b), the FOI body 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. Subsections (a) and (b) 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 public bodies to show to the satisfaction of the Commissioner that both requirements are met. The exemption does not apply in so far as the records contain any of the information or matter referred to in section 29(2). Thus, where an FOI body is relying on section 29(1) for the refusal of a record, it is very important to go on to consider whether section 29(2) applies in relation to the record concerned.

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. 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 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 FOI Act, which require that, on balance, the public interest would be better served by granting than by refusing to grant the request. The public interest test in section 29(1)(b) requires the FOI body to show that the granting of the request would be contrary to, or against, the public interest. Where a body wishes to rely on section 29(1) to refuse access to records, this Office expects it to be in a position to explain how release of the records would be contrary to the public interest. Generally speaking, this requires a body to identify a specific harm to the public interest flowing from release. While there is nothing in section 29 itself which requires the deliberative process to be ongoing, the question of whether it is ongoing or not may be relevant to the issue of the public interest. What I must consider is whether release at this point in time is contrary to the public interest.

Submissions from the Department

As stated above, the Department said that IFI was formally asked by the Minister to develop a long term management plan for the Great Western Lakes. It said that it confirmed with the IFI that the process has not yet concluded. It said that the plan was subject to revision and amendment until an agreed version was settled and finalised.

In terms of considering whether releasing the records would make the applicant aware of a significant decision that the body proposes to make, the Department said that the -�designation of the waters was to be a significant decision to be taken-�. It said that as there were -�so many different and competing views on the designation of these waters, no matter what decision or path was agreed to pursue, there was certain to be a significant opposition to this pathway-�. It said that -�all interested stakeholders, no matter what their perspective are aware of the significance of the evidence-based decision to be made which will take account of views received in the public consultation process-�.

The Department said that at the time the FOI request was received, the draft plan had not been finalised. It said that -�although a draft of the Plan had been noted by the Minister, it was still subject to the various Environmental tests and assessments to comply with Environmental Regulations-�. It said that IFI have -�screened the draft plan for Appropriate Assessment and carried out Strategic Environmental Assessment Scoping-� and that a public consultation process on this was taking place from 19 June 2023 to 31 July 2023. It said that the outcome of this consultative process would help to inform the finalisation the plan, and that -�release of the earlier iterations of the draft plan ahead of compliance of these stringent Environmental Regulations would have been irresponsible and would potentially misinform the stakeholders who are invested in the process-�. The Department said that both it and IFI stand over the fact that the records are clearly part of the deliberative process and that the draft version that went to the first phase public consultation [i.e. record 4] is clearly the only document material to the public consultation.

Furthermore, it said that its view and IFI-�s view was that having a number of versions released at this stage was -�not in the public interest and may lead to confusion-�. It said that release of an incomplete document was -�likely to seriously damage the Department-�s reputation as an intermediary between all the competing interests and may prematurely indicate discrimination in support of a particular angling stakeholder group-�. Moreover, it said that the -�release of documentation exclusively to one specific stakeholder group on the management of the Lakes over other competing interests before final environmental assessments are complete would be inequitable and unjust-�.

It said that once the consultation is complete and the plan is adopted by IFI, it would then release the records.

Submissions from IFI

I also invited IFI to make a submission, which it did. It said that over 350 written and verbal submissions were received by IFI through their online portal and at the public consultation events. It said that every submission has been given due consideration and that the board of IFI will now deliberate on the plan and make decisions as to how best to incorporate the public commentary received into the final draft. It said that during this period, its view is that it would not be appropriate to release previous drafts of the plan, until such time as the deliberative process is concluded.

In terms of public interest factors in favour of release, it acknowledged that there was a public interest in -�members of the public knowing that information held by public bodies to contribute to the greater awareness of environmental matters-�, and that there is a public interest in the openness and transparency of how public bodies carry out their decision-making. However, it said that there is also a public interest in a public body being able to carry out its deliberative process without undue interference, and that releasing documents that do not give a full and comprehensive account of the deliberative process may lead to public conjecture therefore prejudicing and impairing the process. It said that, on balance, it believes it is not in the public interest to release the draft records identified due to the sensitive and emotive subject matter which may lead to unhelpful public scrutiny of the ongoing process which has been extensive and is still ongoing. It said that the release of the documents could impair the integrity and viability of the deliberative process at this time.

My analysis

I accept that the development of a long term management plan for the Great Western Lakes by the IFI (which is an FOI body), a process that has involved substantial consultation and stakeholder engagement to date, is a deliberative process for the purposes of section 29(1)(a). I am satisfied that the records at issue contain matter relating to this deliberative process and that they do not contain any of the information or matter referred to in section 29(2). Accordingly, I must consider whether release of the records would be contrary to the public interest as required by section 29(1)(b).

As stated above, the question of whether the deliberative process is ongoing or not may be relevant to the issue of the public interest and what I must consider is whether release at this point in time is contrary to the public interest. At the time of writing, the deliberative process remains ongoing and the plan has not yet been finalised. A further revised version of the draft plan, dated March 2023, was published online by IFI as part of the next round of public consultations which took place between 19 June and 31 July 2023. The board of IFI must now finalise the plan, taking this consultation into account.

On the question of whether granting the request would be contrary to the public interest by making the requester aware of a significant decision that an FOI body proposes to make,

I do not doubt that when the Long Term Management Plan for the Great Western Lakes is finalised and signed off, that the approach taken will represent a significant decision. However, the question here is whether the release of records 1 and 2 would make the applicant aware of a significant decision that the Department or IFI proposes to make. Given that two subsequent drafts of the plan have been published online (record 4 and the March 2023 version mentioned above, that incorporated the submissions received in the August -� September 2022 consultation process) it is not evident to me that release of the two earlier drafts could make the applicant aware of any significant proposed decision. Neither has the Department nor IFI pointed to anything specific contained in the records in this regard. I find that it has not been established that release of the records 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. 

On the question of whether release of the records would be contrary to the public interest more broadly, it seems to me that the Department-�s arguments are essentially that release of the records would be confusing and misleading and could damage the Department-�s reputation. In considering these arguments, it appears to me that the harms envisaged can be characterised as high-level arguments against the release of draft documents in the context of a deliberative process and they have not been tied to any specific information contained in the records themselves. Even if the harms could be linked to the release of specific parts of the records, this Office does not generally accept that the possibility that information once released will cause confusion or be misinterpreted is a valid reason for refusing access to the record, nor is there any provision in the Act to exempt the release of records on such a basis. We hold this view as, apart from anything else, such an argument appears to be based on an assumption that public bodies are incapable of explaining their records to the public and are unable to present information in such a way which will allow an objective observer to draw an accurate conclusion. I note also that the Department-�s arguments were made at a time when the public consultation process on the environmental assessments was still ongoing; that consultation has now closed.

In relation to the argument that release of the records exclusively to one specific stakeholder group (i.e. the applicant) over other competing interests before final environmental assessments are complete would be inequitable and unjust, I note that release under FOI is generally considered to be release to the world at large and there is nothing to prevent the Department from releasing the records more broadly, if it was of the view that to release them to just one stakeholder would be unfair.

IFI-�s submissions set out the factors in favour of and against release and concluded that, on balance, release was not in the public interest. As stated above, the test at section 29(1)(b) is not a public interest balancing test but a stronger test which requires release to becontraryto the public interest. Looking at the IFI-�s arguments through that lens, it seems to me that it is concerned that release of these records at this time may lead to public conjecture and scrutiny that could impair the integrity of the deliberative process which is ongoing. It did not, however, explain how it envisaged this harm to the deliberative process occurring, which I note is at the stage of final consideration by the IFI board, or point to any specific content in these records whose release could give rise to this harm, nor is it evident to me from an examination of the records.

Overall, for the reasons outlined above, I am not satisfied that it has been shown that release of the records would be contrary to the public interest as required by section 29(1)(b). As both requirements of the exemption must be met, I find that section 29(1) does not apply. 

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 has not justified its decision to refuse access, under section 29(1), to records 1 and 2, 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.
 

Emer Butler
Investigator