Case number: `150223
The applicant's FOI request, dated 7 January 2015 and as subsequently clarified, sought copies of correspondence between the Department and the Departments of Finance and/or Public Expenditure, relating to the proposed policy measures considered in the context of Budget 2015, from June 2014 to the end of October 2014.
The Department's decision of 11 February 2015 told the applicant that it was granting his request in part. It provided him with a schedule of the various records it had considered relevant to the request. The Department withheld a number of records, some in full and some in part, under various sections of the FOI Act, including section 29 (deliberations of public bodies).
On 30 March 2015, the applicant sought an internal review of the Department's decision. The Department's internal review decision of 11 May 2015 released additional material, including some that had previously been withheld under section 29. It continued to rely on section 29, and other provisions, in withholding the remaining material.
On 22 July 2015, the applicant made a request to this Office for a review of most aspects of the Department's decision. In the course of the review, the Department agreed to release a number of the records under review in full except for those it considered to be exempt under section 29. A third party referred to in some of the records to be released did not raise any objections to this when contacted by this Office.
I have now decided to conclude my review by way of binding decision. In carrying out my review, I have had regard to the above; to correspondence between this Office and the Department, and to copies of the records at issue, which were provided to this Office for the purposes of this review. I have had regard also to the provisions of the FOI Act.
This review is confined to whether the Department has justified its refusal of access to the details it withheld under section 29, as contained in records 1; 5; 6; 7; 10; and 11.
Section 18(1) 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 public 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, generally, neither the definition of a record nor the provisions of section 18 envisage or require the extracting of particular sentences or occasional paragraphs from a record (or where relevant, the remainder of a record) for the purpose of granting access to those particular sentences or paragraphs.
Section 22(12)(b) of the FOI Act provides that a decision to refuse to grant a request under section 11 shall be presumed not to have been justified unless the head of the relevant public body shows to my satisfaction that its decision was justified. Although I am obliged to give reasons for my decision, section 25(3) requires all reasonable precautions to be taken in the course of a review to prevent disclosure of information contained in an exempt record. This means that the extent to which I can describe the withheld material is limited.
Finally, the release of a record under the FOI Act is understood to be equivalent to its release to the world at large.
Section 29 is a discretionary exemption. It provides that an FOI request may be refused if (i) it contains matter relating to the deliberative processes of an FOI body (including opinions, advice, recommendations, and the results of consultations), and (ii) the granting of the request would, in the opinion of the head of the FOI body, be contrary to the public interest.
The two requirements set out above are independent, 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 the Commissioner that both 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.
Section 25(3) prevents me from describing the material at issue in any detail. Record 1, according to the material released from it, concerns "Costings on State Pensions Schemes". The Department says that the material withheld from this record concerns one of a number of options it is "currently actively examining" in relation to one particular State pension. It says that such an examination is necessary to ensure proper long term planning and to protect the interests of contributors and the Social Insurance Fund. The Department says it is a complex process that will "take some time" and its outcome will be a matter for a future Government.
The details withheld from records 5, 6 and 7 concern six possible Budget options and related costings (details of the other options considered have been released). The Department says that these remain "viable Budget options". It acknowledges the applicant's argument that annual Budgets are framed in the context of the overall financial position in any year. It says, however, that specific expenditure measures such as those in the withheld details may be required in the future because, apart from Ireland having to meet EU expenditure rules, policy reform is necessary to ensure the best and most sustainable use of public monies in the welfare area.
As is clear from the material released from record 10, the withheld details are elements of a paper prepared for the Tax Strategy Group (TSG) regarding possible Pay Related Social Insurance (PRSI) changes. The Department says that these changes "remain part of the deliberative process", in that future PRSI policy is "very likely to remain one of the key policy decisions for Governments in the coming years".
The material withheld from record 11 comprises Departmental comments on unpublished elements of a paper concerning Income Tax, which was prepared by the Department of Finance for the TSG. Again, this is evident from the material already released from the record. The Department says that the unpublished elements of the Income Tax paper "potentially remain part of the deliberative process in relation to reform of the taxation system" and that its opinions as set out in this record form part of those deliberations.
Having regard to the details at issue and the Department's submission, I accept that the withheld material comprises options considered by the Department and the Departments of Finance/Expenditure and Reform, and related opinions, in advance of Budget 2015. The fact that deliberations pertaining to Budget 2015 have concluded is irrelevant when considering the first requirement of section 29, and I find that the withheld details relate to the deliberative processes of these FOI bodies.
The public interest test contained in section 29 differs from the public interest test found in other exemptions under the FOI Act. Other exemptions require the public body to be of the opinion that the public interest would be better served by release. To avail of section 29, the public body must be of the opinion that releasing the records would be against the public interest. In my view, this exemption tends more strongly towards release of records, and public bodies have a higher hurdle to overcome in demonstrating that it applies.
Therefore, public bodies must show, to this Office's satisfaction, that release of the material at issue 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 the exemption itself which requires the deliberative process to be ongoing, the question of whether the process is ongoing or at an end may be relevant. Furthermore, section 29 specifically requires consideration of whether the requester would, by the release of the record(s), become aware of a significant decision that the relevant FOI body proposes to make.
The Supreme Court has made it clear that, in considering the public interest, I can only have regard to "true public interest[s] recognised by means of a well-known and established policy, adopted by the Oireachtas, or by law." The FOI Act recognises a public interest in ensuring openness and accountability. In this case, there is a strong public interest in ensuring openness and accountability regarding possible changes to taxation and/or social welfare policies.
Turning to the public interest in favour of withholding the details, it has not been argued that release of the details would result in the applicant becoming aware of a significant decision that the relevant FOI body proposes to make. Rather, it is the Department's position that the deliberative processes have not concluded - a position which the applicant does not accept.
He maintains that the relevant figures will be rendered redundant in the context of future Budget discussions as the economic situation will have altered radically by then. He does not accept that material considered in the context of Budget 2015 would be the basis of future debate, and argues that accepting this proposition would render all Budget documents permanently subject to deliberative processes. However, the withheld material contains not only costings but the details of related proposals that have not been made public. Generally speaking, I also accept that it is possible that proposals considered and not proceeded with in one Budget may be given further consideration in a later Budget.
The Department says it is "currently actively examining" the proposal referred to in record 1, while the details withheld from record 10 also "remain part of the deliberative process".
It is less clear to what extent the material withheld from records 5, 6 and 7 is subject to ongoing deliberation, however, in that the Department says only that the options remain viable Budget options for future Governments. Similarly, it says that the proposals referred to in record 11 "potentially remain part of the deliberative process in relation to reform of the taxation system". I do not accept that, just because the State's finances have improved, there is absolutely no possibility that the proposals in the withheld material might need to be considered for implementation in the short or medium term. External forces can place significant pressures on Ireland's economy. These external forces might require relatively swift Budgetary corrections to be made, regardless of the country's current economic position. Furthermore, general policy reform may require amendment of certain current policies and/or entitlements. I accept the Department's position that the withheld details could be relevant to any such Budgetary corrections or policy reforms that may be implemented. Thus, I accept that the material withheld from records 5, 6, 7 and 11 has ongoing potential application and could be subject to further deliberation by the above mentioned FOI bodies, at least in the short to medium term. It is reasonable to see them differently to, say, a single measure considered in the context of a particular Budget.
In considering possible changes to taxation and welfare policies, I accept that decision makers should be able to consider, and select from, as many options as possible. The Department's position is that, if adopted, the various proposals would be set against the broader financial and policy parameters of an individual annual Budget and/or the overall reform of a scheme that may also include saver clauses or measures to support the most vulnerable. Thus, it maintains that release of the details at issue at this point in time would lead to a "real possibility" that it will subsequently become impossible for them to be implemented if Government wishes, or is essentially required, to do so. In that context, alternative expenditure reducing items would have to be identified, and/or policy reform generally could be impaired. It maintains that, thus, the release of the material at issue is contrary to the public interest.
It seems to me that the Department has identified a specific harm to the public interest flowing from release of the details at issue at this point in time. I accept the Department's arguments and I find, at this point in time, that release of the details at issue would be contrary to the public interest. While I would not accept that the details are permanently exempt under section 29, it is not appropriate for me to speculate on how long the details might require to be withheld.
The Exceptions to Section 29(1)
Section 29(2) provides that the exemption does not apply if and in so far as the record contains any or all of the following: (a) matter such as rules, procedures, guidelines, interpretations and precedents used, or intended to be used, by an FOI body for the purpose of making decisions, determinations or recommendations; (b) factual information; (c) the reasons for the making of a decision by an FOI body; (d) a report of an investigation or analysis of the performance, efficiency or effectiveness of an FOI body in relation to the functions generally or a particular function of the body; (e) a report, study or analysis of a scientific or technical expert relating to the subject of his or her expertise or a report containing opinions or advice of such an expert and not being a report used or commissioned for the purposes of a decision of an FOI body made pursuant to any enactment or scheme.
In his internal and OIC review applications, the applicant argued that the exclusions at section 29(2) applied, although he did not explain why he considered this to the case. I do not consider any of the exceptions to be relevant to the case at hand. In so far as any of the information at issue can be described as factual, I consider that to direct release of such information without the related proposals and opinions would render the ensuing copy of the records concerned to be misleading and would breach section 18 of the Act as outlined above.
I find that none of the exceptions at section 29(2) apply in this case, and that the details withheld from records 1; 5; 6; 7; 10; and 11 are exempt under section 29(1) of the FOI Act.
Having carried out a review under section 22(2) of the FOI Act, I hereby affirm the Department's refusal of access to the records at issue under section 29(1) of the FOI Act.
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.