Whether the Department was justified in refusing access to a cost-benefit analysis report concerning the development of a deep water quay at Rossaveel Harbour, Co. Galway, under sections 29(1), 30(1)(a) and 40(1)(b) of the FOI Act
22 May 2020
In a request dated 8 August 2019, the applicant sought access to the “report or cost benefit analysis carried out in 2016-2018 about the future development of Ros a’Mhíl, Co. Galway, possibly including reference to the proposal to develop a deepwater harbour at the site”. In a decision dated 15 August 2019, the Department refused access to the report at issue under sections 29(1) (deliberative process), 30(1)(a) (functions and negotiations), and 40(1)(b) (financial and economic interests of the State) of the FOI Act. Following a request for internal review, the Department affirmed its decision. On 5 September 2019, the applicant sought a review by this Office of that 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 communications between the parties, as above, and to those between this Office and each party on the matter. I have also had regard to the record at issue. I have decided to conclude this review by way of a formal, binding decision.
Scope of the Review
The Department identified a single report as coming within the scope of the applicant’s request. The report is entitled “Rossaveel Harbour Deep Water Quay Cost Benefit Analysis Final Report 23rd June 2017”. This review is concerned solely with whether the Department was justified in refusing access to the report under sections 29(1), 30(1)(a), and 40(1)(b) of the FOI Act.
Analysis and Findings
Section 29 – Deliberations of FOI bodies
Section 29(1) provides for the refusal of a request where (a) the record sought contains matter relating to the deliberative processes of an FOI body and (b) the body considers that granting 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. It is therefore important for public bodies to show that both requirements have been met.
The section further provides that, without prejudice to the generality of paragraph (b), in determining whether to grant or refuse to grant the request, the body must consider whether the grant of the request would be contrary to the public interest by reason of the fact that the requester would become aware of a significant decision that the body proposes to make.
A deliberative process can be described as a thinking process, which informs decision making in an FOI body. 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 stated that the deliberative process at issue relates to the feasibility analysis of the appropriateness or otherwise of the development of a deep water quay at Rossaveel Fishery Harbour Centre, Co. Galway. It said the report was prepared in order to measure the economic benefits of a decision to develop the quay less the costs associated with the development. It said the report forms a pivotal part of its current deliberations regarding the proposed development, which involve carefully studying the report and other documents associated with the proposed development.
Having considered the matter carefully, in this case I am satisfied that the report contains matters relating to the deliberative processes of the Department and that the first requirement for section 29(1) to apply is met. The question I must consider, therefore, is whether the release of the records would be contrary to the public interest.
It should be noted that the public interest test at section 29(1)(b) is a stronger public interest test than that at many other sections of the Act (which require that, on balance, the public interest would be better served by granting than by refusing to grant the request). The test at subsection (1)(b) requires the public body to show that the granting of the request would be contrary to the public interest.
Another feature of the public interest test which is unique to section 29 is the specific reference to considering 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. This factor must be taken into account in considering whether the granting of the request would be contrary to the public interest. If, by the release of the record(s), a requester would become aware of such a significant decision this would, in most cases, support an argument that release would be contrary to the public interest.
The Act clearly envisages that there will be cases in which disclosure of the details of a public body’s deliberations - whether before or, in some cases, after a decision based on those deliberations has been made - 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. Any arguments against release under section 29 of the Act should be substantiated and supported by the facts of the case. This Office expects the body concerned to be in a position to show how granting access to the particular records sought would be contrary to the public interest, for example, by identifying a specific harm to the public interest flowing from release.
On the matter of why the Department considered that the release of the report would be contrary to the public interest, it argued that the deliberative process requires focused care and attention without undue interference from external forces. It said the Department and the Minister bear considerable responsibility for the appropriate use of public funds and must be able to independently decide on the feasibility of such a large project. It argued that in order to carry out such duties effectively, autonomy in respect of the decision-making process is essential. It also argued that there was no significant public interest in releasing the record apart from the local community knowing that the Department was considering the possibility of the infrastructural development.
In essence, the Department’s argument is that undue external interference would affect its ability to take an independent decision on the development and that it needs to have autonomy in respect of its decision making. If I was to accept this argument, it seems to me that I would be accepting that the Department would not be capable of resisting undue external interference when making a decision on the development. I do not accept this argument.
In any event, it is important to note that much is already publicly known about the proposed development in question. Indeed, I understand the Department previously received planning permission for the development. As such, I cannot accept that the disclosure of the report at issue would, of itself, interfere with the Department’s ability to take an independent decision on whether or not to proceed with the development. The Department did not point to any specific part of the report, the release of which might result in the undue interference suggested.
It is also important to note that the FOI Act itself recognises a public interest in the enhancement of transparency and accountability in relation to the manner in which public bodies carry out their functions. Indeed, in performing any function under the Act, FOI bodies must have regard to—
(a) the need to achieve greater openness in the activities of FOI bodies and to promote adherence by them to the principle of transparency in government and public affairs,
(b) the need to strengthen the accountability and improve the quality of decision- making of FOI bodies, and
(c) the need to inform scrutiny, discussion, comment and review by the public of the activities of FOI bodies and facilitate more effective participation by the public in consultations relating to the role, responsibilities and performance of FOI bodies.
Having considered the matter carefully, I am satisfied that the Department has not explained how the release of the report would be contrary to the public interest. Accordingly, I find the Department was not justified in refusing access to the report under section 29(1).
Section 30 – Functions and negotiations of FOI bodies
The Department also claimed exemption for the report under section 30(1)(a). That section provides for the refusal of a request where the body considers that 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.
The exemption is subject to a “public interest override,” i.e. even where the requirements of subsection (1) have been met, the exemption does not apply where the public interest would, on balance, be better served by granting access than by refusing to grant the request. Where section 30(1) is being relied on for the refusal of a record, therefore, the decision-maker must go on to consider the public interest test provided for at subsection (2) in relation the record concerned.
In arriving at a decision to claim 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. However, a general prediction without any supporting evidence will not suffice in satisfying the requirement that access to the record could reasonably be expected to result in the outcome envisaged.
The Department argued that the report falls under the function of “investigations”. Its argument for refusing access under this section is very similar to the argument advanced in respect of section 29, namely that the release of the record could result in undue interference that could encumber the important decision-making process of the Minister.
The Department said a cost-benefit analysis report is a holistic examination of the costs and associated benefits of a proposed project. It argued that, depending on a person’s viewpoint, one could choose to focus on costs or benefits more or less and this would serve to diminish the value of the exercise significantly. The Department stated that the Minister must objectively and dispassionately evaluate the report and that the Department believes that autonomy is essential in this regard. The Department considers that the impartiality required to make the “right decision” could be compromised if the record was released.
It seems to me that the Department’s argument is that the release of the report would prejudice the effectiveness of the cost-benefit analysis as the Minister might be unduly influenced by external forces seeking to represent the report in a particular way. I must say that it is not entirely clear to me that a cost-benefit analysis can reasonably be described as an investigation or inquiry such as those envisaged by section 30. Nevertheless, even if I was to accept that it can, I do not accept that the Minister and/or the Department would not be capable of drawing balanced, independent conclusions from the report without having been unduly influenced by external forces.
Having considered the matter carefully, I find that the Department was not justified in refusing the request under section 30(1)(a).
Section 40 – Financial and economic interests of the State
Section 40(1)(b) provides for the refusal of a request where the body considers that premature disclosure of information contained in the record sought could reasonably be expected to result in undue disturbance of the ordinary course of business generally, or any particular class of business, in the State and access to the record would involve disclosure of the information that would, in all the circumstances, be premature.
Section 40(2) sets out a list of the types of records to which section 40(1) may apply. The Department argued that the report falls within the meaning of paragraph (r) of subsection (2), namely a record relating to advising on or managing public infrastructure projects, including public private partnership arrangements (within the meaning of the State Authorities (Public Private Partnership Arrangements) Act 2002). An FOI body may invoke section 40(2) only in conjunction with section 40(1). Thus, the relevant requirements of section 40(1) must still be met.
An FOI body relying on section 40(1)(b) for its refusal to grant access to a record should identify the potential harm specified in paragraph (b) that might arise from disclosure – i.e. undue disturbance of the ordinary course of business generally, or any particular class of business, in the State – and, having identified that harm, consider the reasonableness of any expectation that the harm will occur. Section 40(1)(b) also requires that disclosure of the information be premature.
It is important to note that the Commissioner takes the view that section 40(1)(b) is designed to cover business in the ordinary meaning of the word (that is relating to commercial activity, trade or professions), not the provision of services by or on behalf of the State.
Rather than reference undue disturbance of the ordinary course of business in the State, the Department has instead focused on activities of the Department that might be disturbed as a result of release. In its decision, the Department informed the applicant of its view that release could result in unwarranted interference with the important decision-making responsibility of the Department and the Minister regarding the appropriate use of public funds. In the Department’s submission to this Office, it stated that the undue disturbance at issue is the potential for obfuscation of the decision making process in relation to the proposed deep water quay. The Department suggested that its dispassionate evaluation of relevant findings regarding the development in question could be negatively impacted were the report released, giving rise to undue disturbance to the ordinary course of business. Release, it said, could result in the Department being lobbied by interest groups, thus causing disturbance to the business of the Department.
In any event, the Department’s arguments are the same as those advanced in respect of the other exemptions, namely the impact of undue influence from external sources, arguments I do not accept. Having carefully considered the matter, I find that the Department has not justified its refusal of the report under section 40(1)(b).
In conclusion, therefore, I find that the Department has not justified its refusal to release the report at issue and I direct its release in full.
Having carried out a review under section 22(2) of the FOI Act, I hereby annul the Department’s refusal to release the report under sections 29(1), 30(1)(a) and 40(1)(b) of the Act. I direct that the report be released in full.
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 not later than four weeks after notice of the decision was given to the person bringing the appeal.
22 May 2020