Case number: OIC-106434-K3P3J5

Whether the Department was justified in refusing access to records relating to the transposition of Directive 2014/61/EU under sections 29, 30(1)(c) and 31(1)(a) of the FOI Act

30 August 2021

Background

On 24 September 2020, the applicant made an FOI request to the Department for specified records regarding S.I. No. 391/2016 - European Union (Reduction of Cost of Deploying High-Speed Public Communications Networks) Regulations 2016 and Directive 2014/61/EU. The Department issued its decision on 23 October 2020. It granted access to some records and refused access to the remaining records on the grounds that they were exempt under sections 29 and 30(1)(c) and that sections 15(1)(a) and 15(1)(d) applied to other records. On 28 October 2020, the applicant applied for an internal review of the decision to refuse access to Records 10, 11, 13-28. The Department issued an internal review decision on 18 November 2020, in which it affirmed the original decision. On 19 April 2021, the applicant sought a review by this Office of the Department's decision on Records 14-28.

In conducting my review, I have had regard to the correspondence between the applicant and the Department as outlined above and to the correspondence between this Office and both parties, as well as the content of the records provided to this Office by the Department for the purposes of this review.

Scope of this Review

For reasons given below, I consider it appropriate to address section 31(1)(a) in relation to certain records. Accordingly, the scope of this review is confined to whether Records 14-28 are exempt under sections 29, 30(1)(c) and 31(1)(a) of the FOI Act.

Preliminary Matter

Before considering the exemptions claimed, I wish to note the following points. First, my jurisdiction under section 22 of the FOI Act is to make a new decision, in light of the facts and circumstances as they apply on the date of the review. The Courts have endorsed this approach. Secondly, section 18 of the FOI Act provides that if it is practicable, records may be granted in part, by excluding the exempt material. Section 18 shall not apply if the copy of the record provided would be misleading. This Office takes the view that the provisions of section 18 do not 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, this Office is not in favour of the cutting or "dissecting" of records to such an extent. Being "practicable" necessarily means taking a reasonable and proportionate approach in determining whether to grant access to parts of records.

Analysis and Findings

Section 31(1)(a) - Legal Professional Privilege

Records 17, 18, 20, 22, 23, 27 and 28 contain email correspondence which is titled “legally privileged” and Record 24 refers to legal advice. The Department says that the records contain confidential correspondence with a legal adviser from Comreg. It also says that Records 19 and 21 are attachments to Record 20 and Record 25 is an attachment to Record 24. I therefore believe that it is appropriate to consider whether section 31(1)(a) applies to the records.

The Investigator drew this point to the applicant’s attention during the review and invited his submissions. In summary, the applicant queries whether the records meet the criteria of legal professional privilege. In particular, he asks whether Comreg waived legal privilege by sharing advice outside its own organisation and whether advice sought to inform statutory functions is different to advice sought to protect interests as an organisation.

Section 31(1)(a) of the FOI Act provides that an FOI body shall refuse to grant a request if the record concerned would be exempt from production in proceedings in a court on the ground of legal professional privilege (LPP). In deciding whether section 31(1)(a) applies, I must therefore consider whether the record concerned would be withheld on the ground of LPP in court proceedings. LPP enables the client to maintain the confidentiality of two types of communication: confidential communications made between the client and his/her professional legal adviser for the purpose of obtaining and/or giving legal advice (advice privilege); and confidential communications made between the client and a professional legal adviser or the professional legal adviser and a third party or between the client and a third party, the dominant purpose of which is the preparation for contemplated/pending litigation (litigation privilege).

I have examined the content of Records 17, 18, 19, 20, 21, 22, 23, 24 and 25 and considered the circumstances of their creation. I am satisfied that these records, including the content of the attachments to emails, disclose confidential communications made between Comreg and its legal advisers for the purpose of obtaining and/or giving legal advice. I have applied section 18 of the FOI Act in reaching my conclusions. I can see from the content of the correspondence that Comreg shared it with the Department for the specific purpose of discussions about legislation. I note that Comreg expressly states that it is happy for the correspondence to be shared for this purpose. I am satisfied that the sharing of this legal advice by Comreg with the Department does not amount to a waiver of legal privilege, in circumstances where it was a limited disclosure for a particular purpose. I do not consider that the fact that the legal advice may have been sought or obtained to inform statutory functions alters the fact that it meets the criteria of legal privilege. I find that the Department is justified in refusing access to Records 17, 18, 19, 20, 21, 22, 23, 24 and 25 under section 31(1)(a) of the FOI Act. Given this finding, I am not required to consider the other exemptions claimed over these records.

Records 27 and 28 also contain emails from Comreg’s legal adviser. I have therefore considered whether section 31(1)(a) applies to them. However, in my view the content of those emails is of an administrative nature, as they relate to arranging a meeting and attaching documentation. I find that the Department is not justified in refusing access to Records 27 and 28 under section 31(1)(a).

I will now consider the remaining records under sections 29 and 30(1)(c).

Section 29 – Deliberations of FOI bodies

Sections 29(1)(a) & (b) - Deliberative Process and the Public Interest

The Department claims that the remaining records are exempt under section 29(1) of the FOI Act. Section 29(1) provides that an FOI body may refuse to grant an FOI request if the record contains matter relating to the deliberative process and 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 to the satisfaction of the Commissioner that both requirements are met. The public interest test contained in this provision differs from the public interest test found in other exemptions under the FOI Act. To avail of this exemption, the public body must be of the opinion that releasing the records would be against the public interest. Other exemptions require the public body to be of the opinion that the public interest would be better served by release.

Regarding the application of exemptions, I note that in The Minister for Communications, Energy and Natural Resources and the Information Commissioner & Ors [2020] IESC 57, the Supreme Court said that “any refusal to disclose must be fully reasoned and sufficiently coherent, fact specific, and logically connected to the document or record such that the justification is sufficient.”

Submissions

The Department says that the records relate to deliberations between the then Department of Communications, Energy and Natural Resources (DCENR) and ComReg about the transposition of Directive 2014/61/EU. It says that they outline possible options and courses of action. It submits that releasing them could negatively affect future decisions and/or positions taken and harm the working relationship between the Department and ComReg. It says that although the records are from 2015-2016, the deliberative process contained within should not be released. The Department says that the transposed Articles provide the final decision and the public interest is not best served by releasing records on how these decisions were reached. It also says that Article 8 of the Directive awaits transposition and release of these records may have a negative impact on any possible decision.

Analysis and Findings

Section 29(2)(b) provides that the exemption at section 29(1) does not apply to a record insofar as it contains factual information. Section 2 of the FOI Act states that "factual information" includes information of a statistical, financial, econometric or empirical nature, together with any analysis thereof. The Commissioner regards factual information as including material presented to provide a factual background to the central topic in a record, and that factual information is distinguishable from information in the form of a proposal, opinion or recommendation.

The investigator asked whether releasing the records would lead to the requester becoming aware of a significant decision that the FOI body proposes to make. In response, the Department says that draft text may not have been chosen, but may be considered again at some point in the future and options discussed could impact a number of organisations. I do not consider that this general assertion amounts to evidence of the applicant “becoming aware of a significant decision that is proposed”, under section 29(1). I therefore do not propose to consider this point further.

The records disclose correspondence between the Department and Comreg about the transposition of the Directive into domestic law and discussion on points of interpretation. Having examined them, I consider that some records contain factual information, e.g. background facts as opposed to proposals or recommendations, such as the extracts from the Directive. However, given my conclusion on section 29(1) below, I do not consider it necessary to separate out the factual information from the deliberative material for the purposes of this decision.

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. Having examined the records and considered the Department’s submissions, I accept that the records contain matter relating to a deliberative process about transposing the Directive. I therefore find that section 29(1)(a) applies to the records. I am then required to consider section 29(1)(b).

The Commissioner has found that the FOI Act envisaged that there will be cases in which disclosing the details of an FOI 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 was 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 FOI Act should be substantiated and supported by the facts of the case.

It is important that the FOI body shows to the satisfaction of the Commissioner how granting access to the particular record(s) would be contrary to the public interest, e.g. by identifying a specific harm to the public interest flowing from release. The Commissioner does not accept that the purpose of section 29 is to protect the deliberative process until its completion. If it were, it would have been a simple matter for the Oireachtas to have enacted a specific provision along these lines.

The Department claims that disclosure could harm future decisions and/or positions taken, as well as the working relationship with Comreg. However, it has not substantiated these general assertions. Neither is it apparent to me from examining the specific content of these records how releasing them could result in such harms. These records comprise correspondence between two FOI bodies about domestic legislation which has since been enacted. I note the Department’s point that one Article remains to be transposed. However, it is not apparent to me how disclosing the content of these records could negatively impact that future transposition. I am not satisfied that there is a link between release of the information concerned and the harms alleged.

Having regard to the submissions and the content of the records, I am not satisfied that their disclosure would be contrary to the public interest. I find that section 29(1)(b) does not apply and the Department was not justified in refusing access to the records under section 29.

Section 30 – Functions and negotiations

Section 30(1)(c)

The Department claims that the remaining records are exempt under section 30(1)(c) of the FOI Act. Section 30(1)(c) allows an FOI body to refuse to grant an FOI request if access to the record could, in the opinion of the head, reasonably be expected to disclose positions taken, or to be taken, or plans, procedures, criteria or instructions used or followed, or to be used or followed, for the purpose of any negotiations carried on or being, or to be, carried on by or on behalf of the Government or an FOI body. Section 30(1) is subject to a public interest test under section 30(2).

It is important to note that this exemption does not contain a harm test. It is sufficient that access to the record concerned could reasonably be expected to disclose such negotiation positions, plans etc. An FOI body relying on section 30(1)(c) should identify the relevant negotiations at issue. Section 30(1)(c) makes no distinction between disclosures that have the potential to prejudice current or future negotiations or to cause some other harm, and disclosures which do not. However, such a distinction should be made in applying the public interest test in section 30(2) to records that disclose positions taken etc. for the purposes of negotiations.

The Department says that the records disclose possible positions in negotiations between Comreg and the DCENR. It says that they disclose draft text which may be considered again. It says that releasing the records could negatively affect future decision-making and negotiations. Having examined the specific content of the remaining records, I am not satisfied that they disclose positions etc. taken for the purpose of negotiations. These records comprise back and forth communications between DCENR and Comreg, in which they tease out the details of the Directive and how to transpose it into domestic law. I do not believe that the nature of these particular communications can properly be characterised as negotiations between the parties. I am therefore not satisfied that section 30(1)(c) applies to the records. I am not then required to consider section 30(2). I find that the Department was not justified in refusing access to the records under section 30(1)(c).

Decision

Having carried out a review under section 22(2) of the FOI Act, I vary the Department’s decision as follows. I affirm its decision to refuse access to Records 17, 18, 19, 20, 21, 22, 23, 24 and 25 under section 31(1)(a). I annul its decision to refuse access to the remaining records and direct their release. For the avoidance of doubt, the records that fall for release are Records 14, 15, 16, 26, 27 and 28.

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 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.

Deirdre McGoldrick

Senior Investigator