Decision
M College, c/o XYZ Solicitors and Department of Public Expenditure, NDP Delivery and Reform
From Office of the Information Commissioner (OIC)
Case number: OIC-133419-N0K0K6
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You are here: BAILII >> Databases >> Irish Information Commissioner's Decisions >> M College, c/o XYZ Solicitors and Department of Public Expenditure, NDP Delivery and Reform [2024] IEIC 133419 (13 June 2024)
URL: http://www.bailii.org/ie/cases/IEIC/2024/133419.html
Cite as: [2024] IEIC 133419
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Whether the Department was justified in refusing access, under sections 29(1) and 30(1) of the FOI Act, to meeting minutes, meeting information pack and correspondence arising out of a meeting held by the Public Services Oversight Group on 11 November 2021.
13 June 2024
The applicant in this case is a private third-level college that submitted a request to the Department on 22 March 2022 through its legal representatives, for meeting minutes, meeting information pack and correspondence relating to a meeting which took place on 21 November 2021 of the Public Service Agreement Group (PSAG). The request also sought correspondence emanating from or generated as a result of the meeting which specifically referenced the applicant and a named degree programme in general nursing. References to communications with the applicant in this decision include references to communications with its legal representatives.
The PSAG is provided for under the Building Momentum Public Service agreement (Building Momentum) and comprises employee representatives nominated by the Irish Congress of Trade Unions, representatives of public service employers nominated by the Department, and an Independent Chair. According to the Department, the function of the PSAG is to deliberate on matters which could potentially impact the stability of Building Momentum or which could affect the wider public service. It is relevant to note here that the outsourcing provisions of Building Momentum provide that "the parties reaffirm their commitment to the appropriate use of direct labour, where consistent with efficient and effective public service delivery. The provisions of recent public service agreements relating to external service delivery will continue to apply."
At the time, the PSAG was considering an alleged breach of the outsourcing provisions provided for under Building Momentum. Essentially, two colleges had formulated a strategic partnership for the delivery of an undergraduate nursing degree. The applicant was providing the undergraduate nursing degree programme and a public college was to deliver the internship element of the degree programme i.e. placements for students in hospitals. The Union side of the PSAG alleged that the delivery of these placements was in breach of the outsourcing provisions of Building Momentum and industrial action was threatened should the placements commence.
On 5 May 2022, the Department refused access to all 56 records it identified as being relevant to the applicant's request. In the decision which issued, it stated that access was being refused on the basis that all the records in question were exempt from release under sections 29(1) and 30(1)(a) and (b). It said the records sought concern a matter that had not been finalised and would be subject to further discussions between the Department of Health and a number of other stakeholders. It said granting the request would be contrary to the public interest while the matter remains under consideration. It said the PSAG is an important industrial relations forum comprised of senior DPER management and trade union officials and that the group has a vital role in ensuring the maintenance of a stable industrial relations environment. It said it would not be in the public interest to disclose records pertaining to a matter referred to the group which remains open and subject to further negotiation and discussion.
On 1 June 2022, the applicant sought an internal review of that decision. The Department issued its internal review decision on 20 June 2022. The Internal Reviewer affirmed the original decision to refuse access to all records. On 19 December 2022, the applicant applied to this Office for a review 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 correspondence between the applicant and the Department as outlined above, and to the correspondence between this Office and both parties on the matter. I have also had regard to the submissions of two affected third parties and 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 it prepared when processing the request.
During the course of the review, the Department argued that the records at issue are also exempt under 30(1)(c). The applicant was informed of this and invited to make submissions on the matter, which it did.
Records 10, 11, 12, 14, 17, 31, 50, 51, and 53 contain details of other matters that the PSAG were considering at the time. As the applicant's request is concerned only with the specific nursing programme deliberations, I will not consider of any of that additional information for release as I am satisfied that it falls outside the scope of the request. Moreover, a number of the records in question are duplicates of other scheduled records. I have, therefore, excluded the following records from the scope of the review:
● Record 56 (a duplicate of record 7)
● Record 19 (a duplicate of record 16)
● Record 44 (a duplicate of record 43)
● Record 46 (a duplicate of record 45)
● Record 24 (a duplicate of record 21)
Accordingly, this review is concerned solely with whether the Department was justified in refusing access, under sections 29(1), 30(1)(a), 30(1)(b), and 30(1)(c), to the remaining 51 records, in whole or in part.
During the course of the review, the applicant provided submissions which argued against the Department seeking to rely on section 30(1)(c) after the application for review was submitted to this Office. The applicant argued that that Department should not be entitled to introduce new exemptions that were not part of the basis for the original decision. It argued that this was an attempt to introduce matters not the subject matter of the referral and that this would be prejudicial to it. 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. Accordingly, in light of the "de novo" nature of our reviews, I consider that once an applicant has been put on notice of a new exemption and offered an opportunity to provide submissions on same, it is open to this Office to consider the applicability of additional exemptions cited by the FOI body notwithstanding the fact that the provisions were not relied upon as a ground for refusing access to the relevant records in its decisions on the request.
Secondly, It is important to note that section 22(12)(b) of the FOI Act provides that a decision to refuse to grant a request under section 12 shall be presumed not to have been justified unless the head of the relevant FOI body shows to the Commissioner's satisfaction that its decision was justified. This means that the onus is on the Department to satisfy this Office that its decision to refuse access to the records sought was justified in this case.
Thirdly, section 13(4) provides that, subject to the Act, in deciding whether to grant or refuse an FOI request, any reason that the requester gives for the request and any belief or opinion of the FOI body as to the reasons for the request shall be disregarded. Thus, while certain provisions of the Act implicitly render the motive of the requester relevant, as a general rule, the actual or perceived reasons for a request must be disregarded in deciding whether to grant or refuse an access request under the FOI Act.
Fourthly, I am required by Section 25(3) of the FOI Act to take all reasonable precautions in the course of a review to prevent the disclosure of information contained in an exempt record or that would cause the record to be exempt if it contained that information. Accordingly, the description I can provide of the records at issue is somewhat limited.
Finally, it is relevant to note that this review is quite similar to a review this Office has concluded in case No. OIC-133418, involving the same two parties. In that case, the records at issue concerned correspondence and minutes arising out of a specific PSAG meeting that took place in March 2022. The records at issue in both reviews relate to the applicant and a named degree programme in general nursing and the issues and arguments arising were quite similar. I issued my decision in Case OIC-133418 on 28 March 2024.
The records
The records in this case primarily comprise correspondence between the Department, the Department of Health, the HSE, and the relevant unions between October 2021 and March 2022. While I am constrained by section 25(3) in terms of the description I can give of their contents, I can say that they concern the student placements in question and reflect positions taken by the various parties on the matter.
The Department's primary concerns about the release of the records at issue relate to the potential effect release might have on the dispute resolution process and the role of the PSAG in such matters. The Department refused access to all of the records under sections 29 and 30. As section 30 is concerned with the protection of the functions and negotiations of FOI bodies, I will consider the applicability of that section first.
Section 30
Section 30 provides for the refusal of a request where the FOI body considers that access to the records sought could reasonably be expected to;
(a) prejudice the effectiveness of tests, examinations, investigations, inquiries or audits conducted by or on behalf of an FOI body or the procedures or methods employed for the conduct thereof,
(b) have a significant, adverse effect on the performance by an FOI body of any of its functions relating to management (including industrial relations and management of its staff), or
(c) 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.
Having regard to the nature of the arguments made and to the contents of the records at issue and the context in which they were created, I propose to consider the applicability of section 30(1)(c) in the first instance.
Section 30(1)(c)
Section 30(1)(c) is designed to protect positions taken for the purpose of any negotiation carried on by or on behalf of the Government or an FOI body. It is sufficient that access to the record concerned could reasonably be expected to disclose such negotiation positions, plans etc. There is no requirement to take a view on the consequences of the disclosure of those positions or on whether disclosure would have an adverse effect on conduct by the Government or the FOI body of its negotiations. However, the exemption is also subject to section 30(2), which provides that section 30(1)(c) does not apply where the public interest would, on balance, be better served by granting than by refusing to grant the request. Therefore, while the exemption does not require release of the records to give rise to any particular harms, such issues may be relevant when considering where the balance of the public interest lies.
The Department said the records at issue relate to negotiations which are carried out on behalf of the Government in the context of national public sector pay policy and the pay agreement. It said a number of the records sought would identify management positions
- in the context of both sectoral negotiations and PSAG deliberations - in respect of the matter concerned. It said the PSAG is top level a negotiation forum made up of senior management and trade union officials. It said the position of the PSAG in respect of the present matter and its approach to managing industrial disputes more generally cannot be compromised by the release of records that inform and feed into its core deliberative function.
On the specific question of what matters covered by section 30(1)(c) of the FOI Act the Department considered could reasonably be expected to be disclosed if the information at issue was released, the Department argued that the release of the records would directly disclose the positions taken by the Departments and the Unions for the purposes of negotiations with a view to resolving the matter. It argued that the release of such information would directly harm future negotiations as the matter has not been resolved and was recently referred back to the PSAG for consideration.
The two third party staff representative groups that were notified of the request also made brief submissions. Both third parties said the records deal with matters which were in dispute and subject to ongoing discussions between the parties to the Building Momentum Agreement. They said the discussions have also been subject to consideration by the PSAG which is provided for under the terms of the public service agreement. One of the third parties said there was a threat of industrial action which was not actioned while further negotiations and discussions took place. It said that while attempts were made to resolve issues between the parties, most recently attempts at resolution have faltered and the matter has again been referred to the PSAG.
The applicant argued that the Department failed to show that release of the records could reasonably be expected to disclose positions taken or plans used or followed etc. and was merely casting a "broad net" reasoning for its position. It said the Department has sought to
employ a blanket application of section 30(1)(c) and that it failed to see how every document could reasonably be expected to disclose such positions or plans.
My analysis
Having considered the Department's submissions and the contents of the records at issue, it seems to me that the Department has essentially sought to take a blanket approach to the use of section 30(1)(c) (and other exemptions) to withhold all of the information at issue. Such an approach is wholly inappropriate in circumstances where it is incumbent upon the FOI body to show that the granting of access to the records sought may give rise to a particular harm or harms. In the case of section 30(1)(c), the FOI body must show that the release of the information in the records could reasonably be expected to disclose (i) positions taken or to be taken, or (ii) plans, procedures, criteria or instructions used or followed, or to be used or followed for the purpose of any negotiations.
A number of the records at issue can reasonably be described as covering letters/emails or as concerning general administrative matters such as meeting times, or details concerning meeting attendees and/or agendas, while others do little more than identify the matter in dispute. In my view, those records do not contain details of positions taken or to be taken or plans etc. used or to be used. I note that the Investigator put this view to the Department and in response the Department argued that the timing of PSAG meetings can be of interest to other parties who are not party to PSAG across all sectors of the public service and can be indicative of positions taken, or which may be taken in respect of any items referred to the Group. It further argued that releasing attendee names would be indicative of matters under discussion and the approach of the Group in deliberating on the matter. It argued that release of PSAG records risks undermining a carefully negotiated agreement on pay and would compromise the role of the Group made up of the negotiating parties which is responsible for the oversight and stability and national pay agreements now and into the future.
One of the main functions of the PSAG was to address disputes or anomalies which arise under the Building Momentum Agreement and to make determinations in accordance with the procedures laid out in the Agreement. It would be reasonable to expect, therefore, that any records relating to the PSAG meeting would be likely to concern disputes between parties. It is my view, that as the functions of the PSAG are in the public domain, it would be known to any individual or organisation who sought records from the PSAG that the records would concern some manner of negotiation or dispute. I do not accept that the release of the timings of such discussions or the attendee names who were in attendance would involve the disclosure of positions taken or to be taken for the purpose of the negotiations or of plans and procedures to be followed for the purpose of such negotiations.
Nevertheless, I accept that a number the records contain specific details of positions of the various parties in relation to the ongoing consideration of the issue of the student placements and that their disclosure would, in my view, disclose negotiating positions. I find that section 30(1)(c) applies to records 1, 2, 4, 7, 8, 15, 16, 21, 26, 27, 32, 35, 37, 39, 41, 47, and 49. I find, however, that section 30(1)(c) does not apply to the remaining records.
Section 30(2)
Section 30(2) provides that section (1) does not apply where the FOI body considers that the public interest would, on balance, be better served by granting than by refusing to grant the FOI request. Having found section 30(1)(c) to apply to records 1, 2, 4, 7, 8, 15, 16, 21, 26, 27, 32, 35, 37, 39, 41, 47, and 49, I am required to consider the applicability of section 30(2) in respect of those records.
In its submissions to this Office, the Department noted the public interest in openness of the workings of public bodies and expenditure of public funds. However, it also contended that in the circumstances of this case the release of records could harm current or future negotiations. It said it had regard to this public interest in ensuring the openness and accountability of public bodies regarding how they conduct their business. It said, however, that where the release of records which disclose positions taken for the purposes of negotiations could reasonably be expected to prejudice current or future negotiations or cause some other harm, then the public interest weighs in favour of refusal. It said that an impact on the stability of public sector industrial relations also carries potentially significant costs to the Exchequer, and that this is another reason the decision weighs in favour of refusal. The Department also noted that any fallout on the specific issue could have a precedential effect across the public service, and that on that basis there is a very real concern that the release of the records could limit and compromise the ability of parties to develop a resolution.
Both third parties who were consulted for their views also raised objections to the release of the records, arguing that it is against the public interest. In particular, they argued it would be contrary to the public interest to grant a request concerning matters which are the subject of an ongoing industrial relations processes between senior management and trade union officials, and which could impact upon the Building Momentum or the wider public service if released to the public, in circumstances where there is a threat of industrial action.
The applicant said it is quite apparent that Ireland is currently suffering an unprecedented healthcare crisis on many fronts. It said one such front is in relation to the training, employment, and retention of qualified nursing staff. It said there is an unprecedented demand for nurses in Ireland together with an unprecedented shortage of supply. It said that the undergraduate nursing degree programme at the heart of the dispute will not only provide places to the already existing demand for places in such a course but will also tap into a whole new market of students. It argued that the decision to pause the student placements is to the detriment of the course, the students, and the wider public as a whole.
My Analysis
In considering where the balance of the public interest lies in this case, I have had regard to section 11(3) of the Act which provides that in performing any functions under the Act, an FOI body must have regard to, among other things, the need to achieve greater openness in the activities of FOI bodies and to promote adherence by them to the principles of transparency in government and public affairs and the need to strengthen the accountability and improve the quality of decision making of FOI bodies. However, in doing so, I have also had regard to the judgment 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 Supreme Court found that a general principle of openness does not suffice to direct release of records in the public interest and "there must be a sufficiently specific, cogent and fact-based reason to tip the balance in favour of disclosure". Although the Court's comments were made in cases involving confidentiality and commercial sensitivity, I consider them to be relevant to the consideration of public interest tests generally.
The applicant's arguments in terms of where the balance of the public interest lies in this case seem to me to address more directly the advantages of the nursing degree programme at issue, as opposed to the public interest that would be served by the release of the records to which I have found section 30(1)(c) to apply. Nevertheless, I accept that there is a public interest in the disclosure of information that would allow the relevant parties to better understand and scrutinise the issues arising relating to the pausing of the student placements.
On the other hand, I consider that there is an even stronger public interest in ensuring that Unions are able to confidentially negotiate terms and solutions with Government Departments, and in forums such as the PSAG in circumstances where there is a potential threat to the stability of Building Momentum and the wider public service. The records at issue reveal the early deliberations on what was considered a potential breach of the outsourcing provisions. It is clear from the records that an industrial relations fallout was anticipated if the matter was not resolved to the satisfaction of all parties involved. Separately, the Department and the third parties have made clear to this Office that the matter was not resolved and that it is conceivable that certain points of discussion may arise again, and that the focus for ongoing negotiations is on finding avenues to resolve the matter. In my view, the disclosure of records that I have found to contain negotiating positions of the relevant parties would serve to undermine the ongoing negotiations. I accept that the parties to the dispute have a reasonable expectation that their negotiations would remain confidential, at least while the maters in dispute remain unresolved. In my view, the disclosure of the records could reasonably be expected to hamper the willingness of the parties to engage openly with the PSAG in efforts to resolve the dispute, thus interfering with ongoing efforts to resolve the dispute to the satisfaction of all affected parties. It seems to me that the public interest would be better served by ensuring that efforts to resolve the matter and thus avoid industrial unrest in an already under-resourced area are unimpaired. In the circumstances, I find that the public interest would, on balance, be better served by withholding the records at issue.
Having found section 30(1)(c) to apply to records 1, 2, 4, 7, 8, 15, 16, 21, 26, 27, 32, 35, 37, 39, 41, 47, and 49, I do not need to consider the applicability of any other exemption to those records. I will now proceed to consider the applicability of the other exemptions to the remaining records.
Section 30(1)(a)
Section 30(1)(a) provides for the refusal of a request if the FOI body considers that access to the record concerned could reasonably be expected to prejudice the effectiveness of tests, examinations, investigations, inquiries or audits conducted by or on behalf of an FOI body or the procedures or methods employed for the conduct thereof. Where an FOI body relies on this provision, it should identify the potential harm in relation to the relevant function specified in paragraph (a) that might arise from disclosure and having identified that harm, consider the reasonableness of any expectation that the harm will occur.
In relation to section 30(1)(a), the Department said the records relate to the core function of the PSAG which is to deliberate on matters that might present a threat to the stability of industrial relations in the public service. It said the publication of any documents pertaining to or emanating from the work of the PSAG could impact on the ability of the body to confidentially deliberate and/or make recommendations in respect of industrial relations matters of national importance. It argued that the absence of that level of confidentiality would severely threaten PSAG's core function and the existence of the body itself, or similar oversight bodies in the future. It said that as the PSAG plays a vital role in addressing industrial disputes of national importance, the absence of the PSAG or similar body would risk industrial unrest across all sectors of the public service. It argued that any impact on the confidentiality of the PSAG and the deliberations of government departments leading to or emanating from referral of a matter to PSAG - would impact on its ability to meet regularly to address serious industrial relations issues, and that this would in turn impact on the body's work in de-escalating industrial disputes and providing guidance to management and staff representative bodies in public service sectors so that a stable industrial relations environment is maintained for the citizen.
My Analysis
Section 30(1)(a) envisages two types of harm, namely (i) prejudice to the effectiveness of tests, examinations, investigations, inquiries or audits conducted by or on behalf of an FOI body, and (ii) prejudice to the procedures of methods employed for their conduct. The Building Momentum Agreement provides for agreed dispute resolution procedures, one of which includes the consideration of certain matters by the PSAG. While I accept that the PSAG may consider matters referred to it by the parties following which it may make recommendations to the parties in relation to a dispute, it is not apparent to me that the consideration by the PSAG of a matter referred to it can reasonably regarded as a test, examination, investigation, inquiry or audit. Rather, it is a process for seeking to resolve a disagreement or conflict between the parties in respect of industrial relations matters. In any event, even if it could, the question remains as to whether the release of the records at issue could reasonably be expected to prejudice the effectiveness of such tests, examinations, inquiries or audits or the procedures or methods employed for their conduct.
To be fair to the Department, its arguments were made in respect of all of the records, including those to which I have found section 30(1)(c) to apply. Nevertheless, as I have outlined above, the remaining records at issue do not contain details of the negotiating positions of the various parties. Rather, they can reasonably be described as covering letters/emails or as concerning general administrative matters such as meeting times, or details concerning meeting attendees and/or agendas, while others do little more than identify the matter in dispute.
The Department has essentially argued that the release of any records pertaining to or emanating from the work of the PSAG could impact its ability to confidentially deliberate and/or make recommendations on issues of national importance. It has not pointed to any specific information in any of the records at issue whose release could reasonably be expected to prejudice either the effectiveness of the PSAG's functions or the procedures used. I do not accept that the release of any parts of the records at issue could reasonably be expected to impact upon the willingness of relevant parties to continue to engage with the PSAG to the extent that it would impact on the PSAG's ability to fulfil its core and key functions. Having considered the matter, I am not satisfied that the Department's expectation of harm is reasonable. I find, therefore, that section 30(1)(a) does not apply to the records at issue.
Section 30(1)(b)
Section 30(1)(b) provides for the refusal of a request where the FOI body considers that access to the record concerned could reasonably be expected have a significant, adverse effect on the performance by an FOI body of any of its functions relating to management (including industrial relations and management of its staff). The FOI Body should identify the relevant function relating to management and identify the significant adverse effect on the performance of that function which is envisaged. A claim for exemption under section 30(1)(a) or 30(1)(b) must be made on its merits and in light of the contents of each particular record and the relevant facts and circumstances of the case.
As with section 30(1)(a), the arguments were made in respect of all of the records, including those to which I have found section 30(1)(c) to apply. For the same reasons as I have outlined above in respect of section 30(1)(a), and having regard to the contents of the remaining records at issue, it is not clear to me how the release of those records could reasonably be expected to cause harm at the level of a significant adverse effect on industrial relations or staff management. I find that section 30(1)(b) does not apply to the remaining records.
Section 29(1)
Section 29(1) of the Act 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.
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.
In its submissions, the Department said matter at issue concerns an industrial dispute that has been the subject of consideration and discussion as part of the agenda of the PSAG, which is made of up of senior management and unions and is overseen by an independent Chairperson. It said that, as per the text of a document issued by PSAG in February 2022 clarifying the dispute resolution process, the very function of PSAG is to deliberate on "matters that could potentially impact on the stability of Building Momentum or could affect the wider public service". It noted that Building Momentum provides that the PSAG will work proactively to; address anomalies, issues of interpretation, disagreement or problems which may arise; make a determination on whether a dispute shall be determined in accordance with the procedures laid out in the Agreement; make a determination on any matter associated with the correct operation of dispute resolution procedures; and adjudicate in the event of a dispute. It further noted that Building Momentum provides that the PSAG will consider matters referred by the parties in the first instance, following which it may make a recommendation to the parties in relation to the dispute, potentially including the need for further discussion through the resumption of conciliation.
The Department argued that releasing of any records pertaining to deliberations by the PSAG would impact on the ability of that body to fulfil its core and key function. It said the minutes of those meetings are indicative of the PSAG's deliberations and record the outcome of those discussions in respect of the matter at that time. It said senior officials from the Department are members of the PSAG. It said other records contain correspondence between senior management officials in the Department and the Department of Health discussing approaches to management of industrial relation in the sector. It said the records also contain correspondence between senior union officials and management officials pertaining to the deliberations and on the matter of referral to the PSAG. It said the records also contain internal correspondence between DPER officials which identify approaches to managing industrial relations from a central perspective. It said all of this correspondence informs the PSAG deliberations and consideration in respect of the matter and decisions taken by the PSAG regarding appropriate next steps in the industrial relations process.
Having regard to the Department's submissions and to the contents of the records at issue, I am satisfied that the records relate to a deliberative process, namely deliberations as to whether there was a breach of the outsourcing provisions of Building Momentum and options to resolve the dispute. I accept the Department's submission that deliberations remain ongoing in relation to the issue. Accordingly, I am satisfied that the records relate to the deliberative processes of an FOI body and that section 29(1)(a) applies to the records. However, that is not the end of the matter as both subsections (a) and (b) must apply for section 29(1) to apply.
Section 29(1)(b)
For section 29(1) to apply, the FOI body must show that the granting of the request would be contrary to the public interest. The FOI Act clearly envisages that there will be cases in which disclosures of the details of an FOI body's deliberations 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. 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. Any arguments against release under section 29 of the Act should be substantiated and supported by the facts of the case. It is important that the FOI body shows how granting access to the particular records would be contrary to the public interest, e.g. by identifying a specific harm to the public interest flowing from release.
The Department said the PSAG is an essential industrial relations forum. It said it is the most senior engagement forum that has met to address industrial relations matters since the signing of the Building Momentum agreement. It said the PSAG has a vital role in maintaining a stable industrial relations environment and providing oversight and direction in respect of disputes arising in the context of the Public Service Agreement. It said that to ensure that stable industrial relations are maintained nationally, in the health sector (to which the present matter relates) and across all sectors of the public service, it is essential that the deliberations of the PSAG remain confidential. It argued that to release records of the body whose very function is to deliberate on important industrial relations matters in the context of the public service agreement would impact on the ability of that body to fulfil its core and key function and would set an extremely dangerous precedent that could have a wide-ranging impact on the management of industrial relations for the public service. It said that all industrial disputes, particularly those which are escalated to higher levels, carry a risk of industrial action. It said the deliberations and engagements by management, union officials and the PSAG have thus far averted any industrial action in respect of the matter. It said the confidentiality of all communications pertaining to the PSAG is a key kernel of management and the PSAG's role in carrying out this function.
Again, I would note that the Department's arguments were made in respect of all of the records, including those to which I have found section 30(1)(c) to apply. As I have also outlined above, I do not accept that the release of the timings of discussions or the attendee names who were in attendance would involve the disclosure of negotiating positions or procedures. I do not accept that section 29(1) can be used to exempt all records relating to the deliberations of the PSAG regardless of their content. In my view, the release of the remaining records would not give rise to the harms identified by the Department. As such, I am, not satisfied that the release of those records would be contrary to the public interest. I find, therefore, that section 29(1)(b) does not apply. Accordingly, I find that the remaining records are not exempt under section 29(1).
Section 37 - Personal information
Section 37(1) of the FOI Act provides for the mandatory refusal of a request where the FOI body considers that access to the record sought would involve the disclosure of third party personal information. For the purposes of the FOI Act, personal information is defined as including information relating to the employment or employment history of the individual. A number of the records contain the names and email address of individuals employed by staff representative organisations. I am satisfied that such details are exempt under section 37(1) and that the public interest in protecting the privacy rights of those individuals outweighs the public interest in the release of the information in question.
Having carried out a review under section 22(2) of the FOI Act, I hereby vary the Department's decision. I find that the Department was justified in refusing access to records 1, 2, 4, 7, 8, 15, 16, 21, 26, 27, 32, 35, 37, 39, 41, 47, and 49 under section 30(1)(c) and find that the public interest does not favour the release of the information. I annul its decision to refuse access to the remaining records withheld on the basis of sections 30(1)(a), 30(1)(b) and/or 29(1) and direct the release of those records to the applicant, subject to the redaction of the names and email address of individuals employed by staff representative organisations.
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.
Stephen Rafferty
Senior Investigator