Whether the Department was justified in refusing, under section 29(1) of the Act, the applicant's request for records relating to applications it submitted to the Department in 2006 and 2014 for an aquaculture licence
8 January 2020
On 13 September 2018, a firm of solicitors sought access to records relating to an application made by or on behalf of two specified business names on 17 November 2006 for the renewal of a specified Fish Culture Licence and a specified Foreshore Licence (collectively the Licence) and all records relating to the application made in December 2014 for the renewal of the Licence. Following engagement with the Department, the request was amended to one for all records relating to the receipt of, consideration by the Department, and progression of the applications for renewal of the Licence in the relevant years.
In its decision of 9 November 2018, the Department identified 239 records as relevant to the request, granting access to ten records and refusing access to all other records on the basis that sections 29, 36 and 37 of the FOI Act applied. The firm sought an internal review of that decision on 19 November 2018, following which the Department affirmed its decision. On 20 December 2018, the firm sought a review by this Office of the Department's decision, in which it confirmed that it had submitted the request on behalf of a named company. For the purposes of the review, therefore, I have treated that company as the applicant for review. All references to engagements with the applicant in this decision should be read as including engagements with the firm of solicitors representing the applicant.
In conducting this review, I have had regard to the correspondence between the applicant and the Department and to the correspondence between this Office and both the applicant and the Department on the matter. I have also had regard to the nature and contents of the relevant records. I have decided to conclude the review by issuing a formal, binding decision on the matter. 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.
Scope of the Review
The applicant in this case is essentially the Licensee /Licence Applicant. As such, it was apparent to this Office’s Investigator, Ms Lynch, that the applicant may already be in possession of many of the records originally identified by the Department as coming within the scope of the request. Following an initial examination of the file and records, Ms Lynch wrote to the applicant and asked it to consider reducing the scope of the review by removing records which it could identify as ones it already had. Following this exercise, the applicant reduced the scope of the review to 104 records.
Subsequently, Ms Lynch informed the applicant of certain records included in the 104 records that were duplicates of records which the applicant had already identified as having and she sought its agreement to remove those duplicates form the scope of the review. The applicant did not consent to that proposal.
Of the 104 records at issue, I am satisfied that record 18 and parts of 41 and 43 are outside the scope of the review as they do not relate to the relevant licence renewal applications. Accordingly, this review is concerned solely with whether the Department was justified in refusing access to the 103 records remaining in scope.
Section 18(1) of the Act provides, that "if it is practicable to do so", access to an otherwise exempt record shall be granted by preparing a copy, in such form as the head of the FOI body concerned considers appropriate, of the record with the exempt information removed. Section 18(1) does not apply, however, if the copy provided for thereby would be misleading (section 18(2) refers). This Office takes the view that the provisions of section 18 do not envisage or require the extracting of particular sentences or occasional paragraphs from records for the purpose of granting access to those particular sentences or paragraphs. Generally speaking, therefore, this Office is not in favour of the cutting or "dissecting" of records to such an extent. Being "practicable" necessarily means taking a reasonable and proportionate approach in determining whether to grant access to parts of records.
Analysis and Findings
The Department refused access to all of the remaining records at issue under section 29(1) of the Act. It also cited sections 36(1)(b) and 37(1) in respect of a small number of records. However, in its submissions to this Office, the Department stated that sections 36 and 37 were no longer of relevance, given the clarification that the applicant in this case is the Licensee/Licence Applicant. The records include internal Departmental correspondence, correspondence with other statutory bodies who are required to be consulted, and engagements with the applicant.
Section 29 - Deliberative Processes
Section 29(1) provides that a request may be refused 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), and (b) the body considers that granting the request would be contrary to the public interest. These two requirements are independent. The fact that the first is met carries no presumption that the second is also met. It is therefore important for FOI bodies to satisfy this Office both that 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.
According to the Department, aquaculture licensing is administered through the Aquaculture and Foreshore Management Division (AFMD). The Minister decides on applications made to the Division on the approved application form. The licence in question in this case is a Marine Finfish application and must be accompanied by a foreshore licence also issued by AMFD. The Department considers all aquaculture licence applications under the provisions of the Fisheries (Amendment) Act 1997, the Foreshore Act 1933, relevant EU legislation, and the Aquaculture (Licence Application) Regulations 1998 (the Regulations).
The licensing process involves consultation with a wide range of scientific and technical advisers as well as various statutory consultees. Regulation 10 of the Regulations requires certain statutory bodies to be notified of an aquaculture licence application. The legislation also provides for a period of public consultation. The applicant must give public notice of an application and members of the public are entitled to make submissions concerning an application.
In its submissions to this Office, the Department provided a detailed history of the licence in question, as follows:
In December 2006, the applicant submitted an application for the renewal of an aquaculture licence that expired in November 2006. An environmental impact statement was not provided as part of the 2006 application as it was not required at the time. The application proceeded to public and statutory consultation.
However, in 2007, the European Court of Justice issued a judgment against Ireland for breaches of the EU Birds and Habitats Directive. A large element of the judgment concerned a failure by the State to put in place a system of data collection, definition of scientific interests and adequate assessment of aquaculture licence applications in Natura 2000 areas. In the negotiations to address the ECJ judgment and to enable aquaculture to continue in Natura 2000 areas in the interim, a process was agreed and is being implemented. This process includes data collection, the setting of Conversation Objectives by the National Parks and Wildlife Service, identifying the scientific interests to be protected in the bays, carrying out of Appropriate Assessments of the licence applications against those scientific interests and appropriate licensing, taking account of, among other things Nature requirements.
The production of the Appropriate Assessments has been resource intensive and very time consuming not least because of tidal cycles and seasonality issues in relation to data gathering on bird migrations and other environmental phenomena. In many cases multi-year time series data had to be collected. In addition, the sea beds on Natura 2000 areas also had to be mapped to identify conservation interests. A lot of preliminary work to prepare the groundwork for consideration of licensing went on from 2009 onwards.
Under section 19(A)(4) of the Fisheries Amendment Act, aquaculture operations operating under pre-existing licences and who were seeking renewals could continue to operate under those licences until a determination could be made on their renewal applications in compliance with the Natura 200 Directives. The applicant in this case has been allowed to continue to operate under the terms and conditions of the licence which expired in 2006.
The 2006 application was subsequently superseded by a new application in 2014. In effect, the applicant has requested a change in the terms and conditions of its licence. The 2014 licence application has not been finalised and remains active. The application has not yet proceeded to public and statutory consultation.
In relation to the applicability of section 29, the Department stated that the records at issue relate to internal communications between the Licensing Authority and its technical and scientific advisers regarding an aquaculture licence application. It argued that as the licence application is currently active and has not yet proceeded to public consultation, the records relate to the deliberative process.
The Department argued that if the records in the possession of the Department were released to the applicant at this stage it may contaminate the overall aquaculture licensing process concerned and could affect the perceived fairness of the overall licensing of aquaculture. It argued that release could confer a perceived unfair advantage to the applicant prior to the public consultation process. It also argued that the premature release of information to the applicant could be used by other parties as justification for an appeal of the Minister’s ultimate decision and be represented as a breach of fair procedures by the Department.
I accept that the records at issue in this case relate to a deliberative process, namely the consideration of applications for an aquaculture licence. The question I must consider, therefore, is whether the release of the records at this point in time 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.
Having carefully considered the matter, I accept that the release of records relating to an ongoing consideration of a licence application, at a time when the application has not yet proceeded to public and statutory consultation, would undermine the licensing process described by the Department. I am satisfied that it is the public interest that decisions taken on licence applications are taken in a manner and by means of a process which accords with the statutory process laid down in the applicable legislation. I believe it would be contrary to the public interest to require the release of records which serve to undermine the integrity of the statutory process.
In this case, therefore, it seems to me that the Department was justified in refusing to grant access to records relating to the ongoing process of consideration of the licence application that was made in 2014 on the ground that release at this point in time would be contrary to the public interest. I find, therefore, that section 29(1) applies to records 68, 121, 125, 127 to 140, 149, 151, 152, 154, 155, 157 to 164, 167, 171, 174, 186 to 190, 195 to 199, 201, 202, 222, and 224 to 239.
Section 29(2) of the Act provides that section 29(1) does not apply if the record contains information listed in section 29(2) including, at subsection (b) factual information. Having regard to this Office’s approach to section 18 as described under the heading “Preliminary Matter” above, I find that none of the provisions of section 29(2) are relevant in this case. Accordingly, I find that the Department was justified in refusing access to the records in question under section 29(1).
On the other hand, as the 2006 application has essentially been superseded, I find it difficult to accept that the records relating to that application can, as a matter of course, be properly considered to relate to the 2014 application or that their release would undermine the integrity of the ongoing statutory process relating to the 2014 application.
The Department has not explained why the records relating to the 2006 application would be of relevance to the 2014 application. I note, for example, that the 2006 application had undergone the full public consultation process and that the applicant was previously provided with copies of all submissions received and was given an opportunity to comment on those submissions. I also note that the Department itself has acknowledged that the 2014 application comprises a request for a change in the terms and conditions of the licence that expired in 2006.
In the absence of evidence to suggest otherwise, I fail to see how the release of the records relating to the 2006 application would undermine the integrity of the ongoing 2014 process. As such, I find that the release of those records would not be contrary to the public interest. I find, therefore, that section 29(1) does not apply to records 1, 31, 32, 35 to 38, 41, 43, 45 to 48, 51 to 55, 64, 70, 72, 79, 80, 90, 91, 191 (pages 1-10), 207, 209 to 221, and 223.
Having carried out a review under section 22(2) of the Freedom of Information Act 2014, I hereby vary the decision of the Department. I find that section 29(1) applies to records relating to the 2014 licence renewal application, namely records 68, 121, 125, 127 to 140, 149, 151, 152, 154, 155, 157 to 164, 167, 171, 174, 186 to 190, 191 (excluding pages 1-10), 195 to 199, 201, 202, 222, and 224 to 239.
I find that section 29(1) does not apply to the records relating to the 2006 renewal application and I direct the release of those records, namely records 1, 31, 32, 35 to 38, 41, 43, 45 to 48, 51 to 55, 64, 70, 72, 79, 80, 90, 91, 191 (pages 1-10), 207, 209 to 221, and 223, with the exception of a small amount of information in records 41 and 43 that does not relate to the applicant’s licence application.
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.