Case number: 140226

Whether the Department was justified in its decision to refuse a request for copies of submissions made on the review of the public works contracts on the basis that records are exempt from release in accordance with section 20 of the FOI Act

Conducted in accordance with section 34(2) of the FOI

Background

On 26 February 2014 the applicant wrote to the Department seeking access to copies of all submissions made to it on the review of the public works contracts. The records at issue in this case comprise submissions to the Department from various interested parties concerning the functioning of fixed-price lump-sum public works contracts, required to be used for all construction projects funded under the Exchequer Capital Programme. These contracts were introduced in 2007 as part of the Construction Procurement Reform Initiative. In 2006, the then Minister for Finance gave a commitment that a review would be conducted at an appropriate time when adequate experience had been obtained in the use of the new contracts by contracting authorities. By 2013, sufficient contracts had reached agreed final account stage for the Office of Government Procurement to conduct a review of the performance of the contracts. The Department explains that the records were created on foot of an invitation to interested parties in December to make written submissions on the review of the contracts.

In its decision of 14 March 2014, the Department refused access to 10 submissions it received on the basis that the records are part of a deliberative process and are exempt under section 20 of the FOI Act. On 9 April 2014 the applicant sought an internal review of the Department's decision. In its internal review decision of 2 May 2014 the Department upheld its original decision to refuse access to the records. On 21 August 2014, the applicant applied to this Office seeking a review of the Department's decision.

During the course of this review, this Office sought and received submissions from the Department and the applicant. It is now appropriate to conclude this review by means of a formal binding decision. In conducting this review, I have had regard to the correspondence between the applicant and the Department relating to the FOI request, to the submissions to this Office, to the content of the records at issue, and to the provisions of the FOI Act.

In the interests of clarity, I should point out that this review was carried out under the provisions of the FOI Acts 1997-2003 notwithstanding the fact that the FOI Act 2014 has now been enacted. The transitional provisions in section 55 of the 2014 Act provide that any action commenced under the 1997 Act but not completed before the commencement of the 2014 Act shall continue to be performed and shall be completed as if the 1997 Act had not been repealed.

Scope of Review

During the course of the review, it came to the Office's attention that some of the records which are the subject of this review are available online on the websites of the organisations that made a submission to the Department. Section 46(2) of the FOI Act provides that the Act does not apply to a record that is available for inspection by members of the public whether upon payment or free of charge or to a record a copy of which is available for purchase or removal free of charge. Accordingly, any submissions which are in the public domain do not come within the scope of this review.

The scope of this review is concerned solely with the question of whether the Department was justified in its decision to refuse access to the submissions it received, other than those publicly available, on the basis that the records are exempt from release under section 20 of the FOI Act.

Analysis and Findings

Section 20(1)
Section 20(1) of the FOI Act provides that a public body may refuse a request where the record sought contains matter relating to the deliberative process of a public body, including opinions, advice, recommendations, and the results of consultations, considered by the body for the purpose of those processes. The deliberative process can be described as a thinking process that refers to the way a public body makes decisions. The process involves the gathering of information from a variety of sources, including external consultation, 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.

The Department states that the submissions at issue were sought from interested parties as part of the process of considering the performance of the public works contracts. It adds that the review is being carried out by officials from the Office of Government Procurement (OGP), an office within the Department, with assistance from a sub-group of the Government Contracts Committee for Construction. The Department explains that the review will also include engagement at appropriate stages by stakeholders. It states that the focus of the review will be establishing the performance of the new form of contract. The Department states that it considers the records in question to be key inputs to the review and argues that they form the first stage of a deliberative process which is on-going. It further argues that it would be unusual to disclose submission documentation relating to a review while it is still incomplete and which will conclude with a Memorandum to Government.

In its submission to this Office, the applicant relies upon the case of National Maternity Hospital v The Information Commissioner [2007] IEHC 113 in support of its contention that the submissions should be released. In the case in question, the High Court considered an appeal taken by the Hospital against a decision of the former Commissioner that access should be granted to certain records held by the Hospital. In her decision on the relevant application for review, the former Commissioner considered the records at issue were not exempt under section 20 as she considered them to relate to

"positions adopted by the Hospital following its deliberations as opposed to material disclosing the internal thinking process within the Hospital or weighing up of options."

In his judgment, Quirke J. stated that he would not interfere with the finding of the Commissioner on that issue because it demonstrated no mistake of law. The applicant argues that the records in this case, being records created by third parties, could not be classified as material disclosing the internal thinking process of the Department. In my opinion, this case can be distinguished from the aforementioned case cited by the applicant on a number of grounds.

The records at issue in the National Maternity Hospital case related to the Dunne Enquiry, an Enquiry established by the then Minister for Health and Children in 2000 to review post mortem examination policy, practice and procedure in the State since 1970. The former Commissioner found that the records at issue related to positions adopted by the Hospital following its deliberations as opposed to material disclosing the internal thinking process within the Hospital or the weighing up of options. In this case, the records at issue do not relate to positions adopted by the Department following its deliberations. The Department invited submissions with a view to considering the responses received in the course of its review of the public works contracts. As such, the submissions cannot be said to relate to positions adopted by the Department.

Secondly, the applicant argues that the records do not contain material disclosing the internal thinking process of the Department. It seems to me that the former Commissioner's comments have been taken out of context. She did not present such comments as representing the test to be applied when considering section 20. Rather, she was simply making the point that disclosure of the records at issue in that case would not disclose information relating to the Hospital's thinking, or deliberative, process. As is evident from the wording of section 20, the exemption may apply to "opinions, advice, recommendations, and the results of consultations, considered by the body for the purpose of" its deliberative processes. The records at issue in this case contain such information and are to be considered by the Department in the course of its review. Furthermore, there is no requirement that records must have been created by the public body for section 20 to apply.

Having examined the records at issue in this case, I am satisfied that they contain information relating to the deliberative processes of the Department and I find, therefore, that section 20(1) applies. That is not the end of the matter, however. Section 20(2)(b) provides that section 20(1) does not apply to a record if and so far as it contains factual information while section 20(3) provides that section 20(1) does not apply where the public interest would, on balance, be better served by granting than by refusing the request.

Section 20(2)(b)
Section 20(2)(b) of the FOI Act provides that section 20(1) does not apply to a record if and in so far as it contains factual information. Before considering section 20(2)(b), however, I should explain the Commissioner's approach to the granting of access to parts of records. Section 2 of the FOI Act defines "record" as including "anything that is a part or a copy" of a record. Section 13 of the FOI Act provides for the deletion of exempt information and the granting of access to a copy of a record with such exempt information removed. This should be done where it is practicable to do so and where the copy of the record thus created would not be misleading. However, the Commissioner takes the view that neither the definition of a record nor the provisions of section 13 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, the Commissioner is not in favour of the cutting or "dissecting" of records to such an extent. Having examined the records at issue in this case, I am satisfied that disclosing only those parts of the records containing factual information would, indeed, result in the extracting of particular sentences and would, in my view, be misleading. Therefore, I find that section 20(2)(b) does not apply.

Section 20(3)
As I have indicated above, section 20(3) provides that section 20(1) does not apply where the public interest would, on balance, be better served by granting than by refusing to grant the request. Consideration of the application of Section 20(3) goes to the content of the record and not only to the circumstances in which it was created. In deciding whether or not to release a record on public interest grounds, the FOI Act requires a balance to be struck between the competing public interest factors in favour of release of a record against those favouring exemption of a record.

The Department accepts that there is a public interest factor in favour of the release of the records at issue, namely the public interest in ensuring value for money in delivering public facilities and infrastructure. Other factors which could be considered in favour of release are the public interest in promoting accountability and transparency in relation to the Department's decision making process. On the other hand, the Department argues that the release of the records at this point in the pre-decision stage would be an intrusion into its full and comprehensive consideration of a significant policy issue. The Department contends that "a certain degree of openness and transparency" currently exists in relation to the on-going deliberative process of the review of public works contracts. On the question of increasing openness and transparency, the Department further states that the OGP will consider publishing a summary of the key issues raised during the evaluation of submissions it has received on the OGP website . It also contends that it is intended to publish the submissions themselves on the same website, subject to gaining the consent of the respective authors.

Having considered the Department's arguments, I accept that there is a strong public interest in ensuring that the Department can properly and fully develop full and comprehensive consideration of a significant policy issue and that impairing the Department's ability to do so is not in the public interest. In my view, it is a reasonable proposition that the Department should be in a position to engage in a pre-decision deliberative process without undue or unreasonable interference. I am satisfied that the records at issue contain material relating to the Department's deliberations on the final position, or decision, it wishes to take in relation to the review of public works contracts. Furthermore, while I accept that the existence of a certain degree of openness and transparency relating to a deliberative process does not, of itself, mean that further measures should not be taken to increase such openness and transparency, I am conscious of the need to strike a balance between increasing openness and allowing public bodies to engage fully in unimpaired pre-decision deliberative processes.

I am conscious that a number of the parties who made submissions have made their submissions available on their respective websites. However, it seems to me that they may have done so to serve their specific interests as opposed to serving the public interest generally. While it is clearly open to any or all of the parties involved to make their submissions publicly available, it seems to me that it would not serve the public interest for the Department to do so in advance of reaching a final position on the matters under review. Accordingly, I am satisfied that the public interest in favour of the release of the records at issue is outweighed, on balance, by the public interest in refusing the request. I find, therefore, that the Department was justified in refusing access to the records at issue pursuant to the provisions of section 20(1) of the FOI Act.

Decision

Having carried out a review under section 34(2) of the Freedom of Information Act 1997, as amended, I hereby affirm the decision of the Department in this case.

Right of Appeal

A party to a review, or any other person affected by a decision of the Information Commissioner following a review, may appeal to the High Court on a point of law arising from the decision. Such an appeal must be initiated not later than eight weeks from the date on which notice of the decision was given to the person bringing the appeal.

 

Stephen Rafferty
Senior Investigator