Case number: 160500, 160503, 160507
This decision concerns three separate requests submitted by the applicant to the former Department of the Environment, Community and Local Government for certain information that was referenced in a number of adjudication reports of the national SuperValu Tidy Towns competitions for the years 2010-2012.
It should be noted at the outset that responsibility for the administration of these competitions transferred to the Department of Arts, Heritage, Regional, Rural and Gaeltacht Affairs (the Department) in May 2016. The Department has assumed the responsibility of responding to this Office for the purposes of the review. Accordingly, for the purposes of the review, I have treated the matter as having always been the responsibility of the Department.
On 19 January 2016 the applicant submitted three separate requests for documentation and information referred to in three adjudication reports concerning his locality. Among other things, he sought details of specific properties mentioned in the reports and copies of certain records mentioned such as maps, submissions, and press cuttings. He also sought access to the names of the adjudicators in each case.
In respect of each request, the Department refused access to the names of the adjudicators under sections 30(1)(a) and 30(2). It refused access to all other information sought under section 15(1)(a) on the ground that it holds no relevant records. On 24 March 2016 the applicant sought an internal review of each decision. The Department affirmed its decisions on the same grounds. On 25 October 2016 the applicant applied to this Office for a review of the decision of the Department in each case.
As the parties to each review are identical, I have decided to consider all three applications together. In conducting my review, I have had regard to correspondence between the applicant and the Department in relation to his requests, and to communications between this Office and both the applicant and the Department in relation to the review.
This review is concerned solely with whether the Department was justified in refusing the applicant's requests for information and records referenced in specified adjudication reports relating to the Tidy Towns competitions under sections 15(1)(a), 30(1)(a) and 30(2) of the FOI Act.
Before I consider the substantive issues, I wish to make a number of preliminary points. Firstly, the FOI Act does not provide for a right of access to information but rather a right of access to records. Therefore, the applicant's requests for information have been interpreted as requests for access to records containing the information sought.
Secondly, section 13(4) provides that the actual or perceived reasons for a request must generally be disregarded by the decision maker, including the Information Commissioner, (except insofar as such reasons are relevant to consideration of the public interest or other provisions of the Act).
Finally, it is important to note that under section 22(12)(b), a decision to refuse to grant an FOI request shall be presumed not to have been justified unless the head of the relevant FOI body shows to the Commissioner's satisfaction that the decision was justified. Thus, the onus is on the Department to satisfy this Office that it was justified in refusing the applicant's requests.
Section 15(1)(a) provides that access to records may be refused if the records concerned do not exist or cannot be found after all reasonable steps to ascertain their whereabouts have been taken. The role of the Commissioner in a case involving section 15(1)(a) is to decide whether the decision maker has had regard to all of the relevant evidence and, if so, whether the decision maker was justified in coming to the decision that the records do not exist or cannot be found after all reasonable steps to ascertain their whereabouts have been taken. The evidence in such cases includes the steps actually taken to search for records. It also comprises miscellaneous other evidence about the record management practices of the FOI body, on the basis of which the decision maker concluded that the steps taken to search for records were reasonable.
During the course of the review, the Department provided details to this Office of the searches conducted in response to the applicant's requests. It also provided an explanation of the adjudication processes at issue. I do not propose to repeat those details in full as they have been provided to the applicant already. Based on the records before me, it appears that the records relied upon by an adjudicator in compiling a report would not normally be retained by the Department or the adjudicator following the completion of an annual Tidy Towns competition. According to the Department, such records are returned routinely to the relevant Tidy Towns committee (a voluntary group not part of the Department, nor subject to FOI). Notwithstanding this general practice, the Department conducted searches for relevant records. In short, the Department has submitted that it consulted relevant individuals on the matter and searched in the locations where it might expect to find relevant records, including copies of records. No relevant records were located. I find no basis for disputing the Department's statements in this regard.
In the circumstances, I am satisfied that the Department has conducted reasonable searches for relevant records and that no such records exist or can be found. I find, therefore, that the Department was justified in refusing the applicant's requests for certain information and records under section 15(1)(a).
The Department refused access to the names of the adjudicators under section 30(1)(a). That section contains a discretionary exemption that allows an FOI body to refuse to grant a request if access to the records sought 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. Section 30(1) is subject to a public interest balancing test in subsection (2).
In arriving at a decision to claim an exemption under section 30(1)(a), an FOI body must first identify the potential harm to the functions covered by the exemption that might arise from disclosure. Having identified that harm, the body must then consider the reasonableness of any expectation that the harm will occur. The test of whether the expectation is reasonable is not concerned with the question of probabilities or possibilities; it is concerned with whether or not the FOI body's expectation is reasonable.
During the course of the review, the Department was given the opportunity to provide an explanation as to why it considered the names of the adjudicators to be exempt under section 30(1)(a), including why it considered that the public interest would be better served by refusing to grant the request. In response, the Department stated that the adjudicators in question were contracted by the Department to carry out the service of completing the relevant adjudications. It stated that an investigation and assessment of the participating towns is fundamental to the Tidy Towns competition. It argued that it was not in the public interest to release the names of the adjudicators given:
Read together, it seems to me that these general points could be considered as an argument that the integrity of the competition might be affected by the release of the names of the adjudicators. However, the Department has failed to identify any specific potential harm to the functions covered by the exemption at section 30(1)(a). It has also failed to explain how such harm might arise and why it considers it reasonable to expect such harm to arise. For example, it has not explained how the release of the names of the adjudicators might prejudice the effectiveness of the assessments or inquiries they carried out, or the methods they used for such assessments or inquiries. Having regard to the requirements of section 22(12)(b), I find that the Department has not satisfactorily shown that its decision to refuse access to the names of the adjudicators was justified and that section 30(1)(a) does not apply.
Having carried out a review under section 22(2) of the FOI Act, I hereby vary the Department's decisions. I direct the release of the names of the adjudicators sought. I affirm the Department's refusal of access to the remaining records sought under section 15(1)(a).
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.