Case number: 170512
On 30 August 2017 the applicant sought access to correspondence relating to (i) the audit commissioned by the Taoiseach into public relations and communications services across Government Departments and (ii) the establishment of the new Strategic Communications Unit within the Department of the Taoiseach, including the appointment of Mr. John Concannon.
In its decision of 9 October 2017, the Department identified 13 records as coming within the scope of the applicant's request. For the purposes of this review, I have adopted the numbering system used in the schedule of records that issued with the decision. The Department granted access to four records, part-granted access to one record and refused access to the eight records under section 29 of the FOI Act, relating to deliberations of public bodies. On 10 October 2017, the applicant sought an internal review of that decision. The Department issued its internal review decision on 27 October 2017 in which it affirmed the original decision. At both the original decision and internal review stage the Department stated its intention to release two of the records at issue (records 9 and 10) when it had completed an ongoing audit of communications across all Government Departments. On 1 November 2017, the applicant sought a review by this Office of the Department's decision.
During the course of the review, the Department indicated its willingness to provide access to two further records (records 8 and 13) with the redaction of certain personal information in the latter record. The Department sought for the first time to rely on section 28(1)(a) of the FOI Act to refuse access to four records (records 3, 5 and 7 in full and record 6 in part). The Department maintained its position that the remaining three records (9, 10 and 11) were exempt under section 29 of the FOI Act.
I have decided to bring this review to a close by way of a formal binding decision. In conducting the review I have had regard to the Department's correspondence with the applicant as outlined above and to communications between this Office and both the Department and the applicant on the matter. I have also had regard to the contents of the records at issue.
This review is concerned solely with whether the Department was justified in its refusal to grant access to records 3, 5, 7, 9, 10 and 11 and to grant only partial access to record 6 under sections 28 and 29 of the FOI Act, and to its decision to redact certain information from record 13 on the ground that the redacted information is personal information.
Section 22(12)(b) of the FOI Act provides that a decision to refuse to grant a request is presumed not to have been justified unless the public body "shows to the satisfaction of the Commissioner that the decision was justified". Therefore in this case, the onus is on the Department to satisfy the Commissioner that its decision to refuse to grant access in full to seven records at issue was justified.
It is also important to note that a review by this Office is considered to be de novo, which means that it is based on the circumstances and the law as they pertain at the time of the decision.
In correspondence with this Office the Department sought to rely on section 28(1)(a) of the Act to refuse access to records 3, 5 and 7 in full and record 6 in part.
Section 28(1)(a) provides for the discretionary refusal of a request if the record concerned has been, or is proposed to be, submitted to the Government for its consideration by a Minister of the Government or the Attorney General and was created for that purpose. For the purposes of section 28, a record is defined as including a preliminary or other draft of the whole or part of the material contained in the record. There is no public interest balancing test to be applied in section 28. However, a record to which section 28(1) applies is releasable in certain circumstances set out in section 28(3) of the FOI Act.
Section 28(3) provides that section 28(1) does not apply to a record if it contains factual information relating to a decision of the Government that has been published to the general public or if the record relates to a decision of the Government that was made more than 5 years before receipt of the FOI request.
For section 28(1)(a) to apply, a record must fulfil three criteria, as follows:
the record has been (or is/ was proposed to be) submitted to the Government for its consideration,
it has been (or is/ was proposed to be) submitted by a Minister of the Government or the Attorney General and
it was created for the purpose of submission to the Government for its consideration
Record 3 is comprised of an email chain with two attachments, namely a draft briefing document and a draft Memorandum for Government. The email contains discussion and observations that, according to the Department, were used to inform and shape the content of the draft memo for Government. I am satisfied that the draft Memorandum for Government fulfils the criteria for section 28(1)(a) to apply. I am also satisfied that none of the provisions of section 28(3) apply to the draft Memorandum and that the Department was therefore justified in refusing access under section 28(1)(a).
However, I am not satisfied that either the email chain or the draft briefing document meet the required criteria. For section 28(1)(a) to apply, the record itself must have been created with the purpose of being submitted to the Government. It is not sufficient that a record contains information relating to another record that meets the criteria. Neither the email chain nor the draft briefing document are records that were proposed for submission to the Government, nor were they created for that purpose. I find, therefore that section 28(1)(a) does not apply to those documents.
Records, 5, 6 & 7
Record 5 is a Memorandum for Government. Record 6 comprises a draft Memorandum with a covering email, and a draft press notice that was already released to the applicant. Record 7 comprises a draft Memorandum with a covering email. I am satisfied that record 5 and the draft memoranda in records 6 and 7 are exempt from release under section 28(1)(a). However, I find that the covering emails in records 6 and 7 are not exempt under section 28(1)(a).
Section 29(1) of the FOI Act provides that an FOI body may refuse to grant a request if the record concerned contains matter relating to the deliberative processes of an FOI body and 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 satisfy this Office that both requirements are met.
The first requirement which must be met in order for section 29(1) to apply is that the record must contain matter relating to the 'deliberative processes' of an FOI body. While not exhaustive, section 29(1) provides that matters relating to deliberative processes includes 'opinions, advice, recommendations, and the results of consultations, considered by the body, the head of the body, or a member of the body or the staff of the body for the purpose of those processes'. An FOI body relying on this exemption should identify both the deliberative process(es) concerned and any matter in particular records which relates to these processes.
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.
The public interest test contained in section 29(1) requires the FOI body to be of the opinion that releasing the records at issue would be contrary to, or against, the public interest. Generally speaking, this requires a 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.
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.
With the above in mind I will now consider the applicability of section 29 to records 9, 10 and 11.
Records 9 & 10
Record 10 contains details of the information provided in respect of the various Government Departments and bodies under their aegis relating to their expenditure and staff resources on communications and public relations campaigns, primarily for the year 2016, while record 9 contains a summary analysis of those details. In a submission to this Office, the Department stated that the information in question was provided in connection with an audit of communications. It stated that the information is still in final draft stage and that the compilation and analysis of the information is ongoing and requires further work, analysis and third party consultation before a true and accurate picture of the communications activity and spend across Departments is finalised. Specifically, it stated that record 10 continues to be updated.
I accept that the audit undertaken by the Department forms part of the deliberative process of the Department in relation to how the Government agreed central strategic communications unit will deliver its services. As such, I accept that records 9 and 10 contain matter relating to the deliberative processes of the Department. However, I consider section 29(2)(b) to be of relevance, That section provides that section 29(1) does not apply to a record if and in so far as it contains factual information. In my view, all of record 10 and the vast majority of record 9, apart from some text on page two, contains such factual information. The fact that it is not necessarily up to date does not, of itself, mean that it cannot be considered as factual information. Accordingly, I find that section 29(1) does not apply to such information.
In so far as record 9 contains a small amount of information that is not captured by section 29(2)(b), the question of whether the release of such information would be contrary to the public interest remains to be considered. The Department argued that it needs the time and space to ensure that the records when released will provide a true and accurate picture of the communications function and spend across Government. In essence, its argument is that to release incomplete information would be contrary to the public interest. However, it has not explained why such release would be contrary to the public interest. For example, it has not argued that the release of the information might impair its ability to complete its deliberative process or how such impairment might arise.
On the other hand, there is a strong public interest in ensuring openness and accountability, as recognised by the FOI Act itself. Indeed, it is noteworthy that under section 11(3) of the Act, an FOI body performing functions under the Act must have regard to, among other things, 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 regard to the provisions of section 22(12)(b) as set out above in the Preliminary Matters section of this decision, I find that the Department has not justified its decision to withhold any part of record 9 under section 29(1).
Record 11 comprises an exchange of emails concerning the establishment of the new central communications unit. The record also includes record 13 which, as set out above, the Department have now indicated that they are prepared to release, subject to the redaction of certain information. I will therefore confine my comments to the remainder of the record, comprising an exchange of emails with the Taoiseach. I am satisfied that the relevant parts of record 11 contain matter relating to the deliberative processes of the Department. However, for the same reasons as I have outlined above in respect of records 9 and 10, I find that the Department has not satisfactorily shown that the release of the record would be contrary to the public interest. I find, therefore, that section 29(1) does not apply.
As I have outlined above, the Department agreed to release record 13 with the redaction of certain information it considered to be personal information. Section 37(1) provides for the mandatory refusal of a request where access to the record concerned would involve the disclosure of personal information relating to individuals other than the requester. Having examined record 13, I am satisfied that the redacted information is personal information and that section 37(1) applies. I am also satisfied that none of the other provisions of section 37 serve to disapply section 37(1). I find, therefore, that the Department was justified in withholding that information. I am also satisfied that section 37(1) applies to the personal email addresses of a number of individuals as contained in records 3, 6 and 11.
Having carried out a review under section 22(2) of the Freedom of Information Act 2014, I hereby vary the decision of the Department of the Taoiseach. I direct the release of the following information
Record 3: All except the draft Memorandum and the personal email addresses of two individuals in the covering emails
Record 6: The covering email, apart from the personal email addresses of one individual
Record 7: The covering email
Record 9: All
Record 10: All
Record 11: All apart from the personal email addresses of a number of individuals and that part of the sentence that was redacted in record 13
I find that the Department was justified in refusing access to the remaining information.
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.