Case number: OIC-56587-F9F4F3
30 January 2020
In his FOI request dated 27 June 2019, the applicant sought access to three categories of records, one of which was all correspondence submitted by the Department to the Budget Oversight Group in the Department of Public Expenditure and Reform (DPER) since 1 April 2019. The Department’s decision of 1 August 2019 released some records in full and others in part. One of the records released in part was record 17. The Department relied on sections 15 (administrative refusals), 29 (deliberative process) and 30 (functions and negotiations of FOI bodies) in relation to the withheld parts of that record but did not specify the particular provisions of those exemptions on which it was relying.
On 2 August 2019, the applicant sought an internal review of the Department’s decision on record 17 and said that the record being sought relates to the Health Service Executive’s (the HSE’s) forecast of its financial position at the end of the year. The Department’s internal review decision of 2 September 2019 said that record 17 contained 654 pages, comprised of an email and seven attachments. It said that four of the attachments were in the public domain (section 15(1)(d)) and that it was releasing two others in part. It withheld the final attachment in full. It relied on sections 29(1) (deliberative process), 30(1)(b) (functions relating to management) and 30(1)(c) (negotiations of the Government or FOI body) of the FOI Act in relation to the attachments it was fully and partially withholding.
On 9 September 2019, the applicant applied to this Office for a review of the Department’s decision to redact a comment from the email in record 17, which he again said appeared to set out a financial forecast prepared by the HSE. He noted the Department’s internal review decision did not appear to address the email. The applicant subsequently confirmed that this review may be confined to a figure that the Department redacted from point 1 of the email in record 17.
I have now completed my review in accordance with section 22(2) of the FOI Act and I have decided to conclude it by way of a formal, binding decision. In carrying out my review, I have had regard to the above exchanges and correspondence between this Office, the Department and the applicant. I have also had regard to the provisions of the FOI Act.
The scope of this review is confined to whether the Department’s decision to redact a figure from point 1 of the email in record 17 was justified under the FOI Act. Details already released from the email reveal that the withheld figure, dating from June 2019, comprises “the HSE’s forecasted position” for 2019.
The Courts have recognised that the Commissioner’s decision is taken after de novo consideration in light of the facts and circumstances applying at the date of the review by this Office, rather than any facts and circumstances that applied at an earlier date.
This Office’s Investigator notified the Department that the applicant had confined the scope of the review to the figure. She noted that the Department’s internal review decision appears to deal with only the attachments to the email in record 17 rather than any details withheld from the email itself. She said that in the circumstances she was assuming that the Department was withholding the figure under the same exemptions claimed regarding the attachments and invited submissions regarding why it is exempt.
The Department’s submission did not say whether the Investigator’s assumptions are correct. Neither did it identify the specific provisions of the FOI Act on which it is relying in this review. Having regard to the various general arguments it made, I am proceeding on the basis that it is relying on sections 29(1), 30(1)(b) and 30(1)(c).
Sections 29(1), 30(1)(b) and 30(1)(c) - general
Section 29 is a discretionary exemption, which provides that an FOI request may be refused if (a) it contains matter relating to the deliberative processes of an FOI body (including opinions, advice, recommendations, and the results of consultations), and (b) the granting of the request would, in the opinion of the head of the FOI body, be contrary to the public interest and, without prejudice to the generality of paragraph (b), the head shall, in determining whether to grant or refuse to grant the request, consider whether the grant thereof would be contrary to the public interest by reason of the fact that the requester concerned would thereby become aware of a significant decision that the body proposes to make. The requirements of sections 29(1)(a) and (b) are independent and the fact that the first is met carries no presumption that the second is also met.
A deliberative process 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 in section 29(1)(b) 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 the Commissioner’s view, this exemption tends more strongly towards release of records. Generally speaking, it would be contrary to the public interest to release a record where a specific harm to the public interest flows from release. While there is nothing in the section 29 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 FOI body proposes to make.
Sections 30(1)(b) and (c)
Section 30(1)(b) of the FOI Act is a discretionary exemption that provides for the refusal of a record if access to the record concerned could, in the opinion of the head, reasonably be expected to "have a significant, adverse effect on the performance by an FOI body of any of its functions relating to management (including industrial relations and management of its staff)". The relevant functions relating to management must be identified as should the potential harm (which, as noted, must be a "significant, adverse effect") to the performance by an FOI body of those functions that might arise from disclosure. Consideration must also be given to the reasonableness of the expectation of harm.
Section 30(1)(c) of the FOI Act provides for the refusal to grant access to a record if access to the record concerned 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. This exemption does not contain a harm test, but the level of harm that may result from release of the record may be relevant to the consideration of the public interest test at section 30(2).
Section 30(2) provides that section 30(1) shall not apply where the public interest would, on balance, be better served by granting than by refusing to grant access to the requested record.
The applicant accepts that deciding what to do to address a financial shortfall is a deliberative process, and says that he is not seeking records relating to such matters. His position is that a financial forecast is a picture at a point in time and of itself not part of a deliberative process. He says that the release of the financial forecast cannot undermine plans to be taken, given that it is already publicly acknowledged that the HSE budget is under pressure and that a savings plan/employment curtailment is being implemented.
He also says that the Minister for Health (the Minister) placed details of the HSE’s financial position for 2019 in the public domain in his response of 22 October 2019 to a Parliamentary Question (PQ) No 42970/19, and that it is not appropriate to withhold the figure in the circumstances. I note that the PQ concerns the breakdown of the supplementary estimate for the Department of Health’s budget (€335 million net) as announced in Budget 2020. In addition, the applicant says that, by the time he made his application to this Office, the Department/HSE had released details of the HSE’s financial position for the first five months of the year. He said that this did not interfere with the estimates and budgetary process for 2020 or the drawing up of the HSE’s service plan for 2020, to which the Department’s internal review decision had referred.
The applicant refers to the scale of the supplementary estimate provided by the government to the HSE in 2018, the overall record level of health funding allocated in Budget 2019 and public comments by Ministers that overruns would not be permitted this year. He says that in such circumstances, the HSE’s financial position is a major issue of public interest, especially given threats to the economy and the public finances arising from a possible “no deal Brexit”.
When inviting submissions from the Department, this Office’s Investigator referred it to the Minister’s response to PQ 42970/19 and asked it to explain why in the circumstances the withheld figure should be considered exempt under the FOI Act provisions being claimed. The Department’s submission, as noted earlier, is in general terms rather than specific to the particular exemptions claimed.
It says that, at the time of the request, the level of funding available for the Department was being considered as part of the national estimates and budgetary process for 2020. The HSE, in consultation with the Department, was also then preparing its National Service Plan (NSP) for 2020. The Department says that the NSP is an important accountability instrument used by the Department to determine how the HSE is performing against its targets, which captures in a clear and quantified way the range of health and social care services to be provided by the HSE for the allocation it has received. It establishes links between funding, staffing and services and incorporates activity measures, outcome-based performance indicators and deliverables in key service areas, which are matched with targets and timescales.
The Department carries out an oversight role regarding the HSE’s performance relating to the delivery of services set out in the NSP. It says that it receives monthly reports from the HSE on the performance of the health system against the agreed NSP targets, which are also shared with DPER. It does not publish draft monthly reports between the Department and HSE in the performance of their relative functions as it believes that this would be inappropriate and impact on the ability of both organisations to function effectively. However, a number of these are collated and published quarterly in arrears on the HSE’s website.
Pending completion of the above processes, the Department says that it was not appropriate for the information to be released because this could negate information being provided from the HSE in future; could impair the integrity of the decision making process with no equal benefit to the public; could impact upon the regulation and control by the Department of the HSE’s pay budget, which has potential consequences for the performance of functions in the HSE and would negatively affect the Department’s negotiating position with DPER, which is carried out on the HSE’s behalf.
Specifically in relation to the withheld figure, the Department says that its release would have severely impaired its negotiating position with DPER in the context of a supplementary estimate. It says that the details contained in the Minister’s response to the PQ were arrived at after numerous bilateral negotiations over a number of months between him, the Minister of Public Expenditure and Reform and their officials, and after the Minister for Public Expenditure and Reform’s announcement of Budget 2020 on 8 October 2019. It says that the details in the PQ relate to a proposed supplementary estimate whereas the details in the record relate to the HSE’s forecast at a point in time of its projected year end position. It adds further brief details in this regard that I will not include in this decision in case this would of itself provide an insight into the withheld information. Otherwise, the Department says that the figure should continue to be withheld because it is still part of the deliberative process, was a position at a point in time, could cause confusion and therefore would not be in the public interest.
It is well settled that mere assertions by an FOI body as to harms that might result from access to a record are not sufficient for the Commissioner to find that a particular exemption provision applies.
The applicant is of the view that section 29(1) cannot apply to the figure. However, he accepts that considerations arising from the forecasted figure amount to deliberative processes. In order for section 29(1) to apply, the material at issue must relate to a deliberative process. Given that the withheld figure relates to processes that the applicant accepts are deliberative in nature, I find that section 29(1)(a) of the FOI Act applies to it.
However, I am not satisfied that it is contrary to the public interest to release the figure concerned at this point in time (section 29(1)(b)). The Department’s submission largely concerns why it withheld the figure when it was making its decisions on the request. While it says that the figure is still part of the deliberative process, it does not describe any ongoing or further such deliberations, or explain how they may be impacted upon by release of the figure. Furthermore, the possibility that information could cause confusion is not of itself a valid basis for finding it to be exempt under the FOI Act.
I find that the figure is not exempt under section 29(1) of the FOI Act.
Even if section 30(1)(b) can apply to records concerning the Department’s performance of its role in the budgets and estimates process, as opposed to its internal management functions, it does not explain how disclosure of the figure at this point in time could reasonably be expected to have a significant, adverse effect on such performance. Neither does it explain how release could reasonably be expected to have a significant, adverse effect on the performance by any other FOI body of any of its functions relating to management. I find that section 30(1)(b) does not apply to the figure.
The Department does not explain how the figure of itself discloses any plans etc. used or to be used etc. for the purpose of any negotiations being or to be carried out by an FOI body or the Government. I see no reason to find that any such plans etc. would be disclosed. While the Department refers to bilateral negotiations between the Ministers for Public Expenditure and Reform and Health preceding Budget 2020, it does not actually say that the figure comprised a position taken in those negotiations. However, from the thrust of the submissions, I am prepared to accept that this is likely to have been the case and that this is just about enough to meet the terms of the section 30(1)(c) exemption in the absence of a harm test.
On the matter of where the public interest lies, I have had regard to the comments of the Supreme Court in The Governors and Guardians of the Hospital for the Relief of Poor Lying-In Women v The Information Commissioner 1 I.R. 729,  IESC 26). It is noted that any public interest considered by the Commissioner must be a true public interest recognised by means of a well-known and established policy, adopted by the Oireachtas, or by law. Although these comments were made in relation to another provision of the FOI Act, I consider them to be relevant to the consideration of public interest tests generally.
The FOI Act itself recognises a public interest in ensuring that FOI bodies are open about and can be held accountable for how they carry out their functions. I also note that section 11(3) of the Act requires FOI bodies, when performing any function under the Act, to "have regard to 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"; to the need "to strengthen the accountability and improve the quality of decision making of public bodies"; and "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". It seems to me that there is a public interest in this case in disclosing information relating to decisions made that affect the public purse, which would be served by granting access to the withheld figure.
It can be argued that there is a public interest in protecting information that qualifies for exemption under section 30(1)(c) of the FOI Act. As I have said above, the level of harm that may result from release of such exempt information may be relevant to the consideration of the weight of this public interest. However, the Department does not explain how disclosure of the figure (from the June 2019 record) at this point in time could impact on the negotiations preceding Budget 2020. The Budget 2020 process has concluded and no related or ongoing negotiations which can be reasonably anticipated have been identified. I have no basis, therefore, to consider that there is significant weight to the public interest in withholding the figure at this point in time. On balance, I find that the public interest weighs in favour of releasing the figure.
Having carried out a review under section 22(2) of the FOI Act, I hereby annul the Department’s refusal to grant access to the figure. I find that sections 29(1) and 30(1)(b) do not apply. I find that section 30(1)(c) applies but that the public interest in release outweighs the public interest in withholding it in the circumstances of this case. I direct the Department to grant access to the withheld figure.
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.