Case number: OIC-126941-Y8J1B0
9 January 2023
Dublin Fire Brigade (DFB) provides an emergency ambulance service in Dublin City and County, by arrangement between the Council and the Health Service Executive (HSE)/ National Ambulance Service (NAS). In 2014, the HSE and the Council jointly commissioned a review of emergency ambulance services in the Dublin region, with the objective of determining the optimal and most cost effective model of ambulance provision. The ensuing report, dated September 2016, is entitled “Review of Arrangements for the Provision of the Emergency Ambulance Service in the Dublin Region”.
The applicant made an FOI request to the HSE on 28 April 2022 for a copy of the report. On 5 May 2022, the HSE transferred the request to the Council, which holds the record. The Council’s decision of 1 June 2022 refused the request under sections 29(1) of the FOI Act (deliberative processes) and 30(1)(c) (negotiations of an FOI body).
The applicant sought an internal review on 3 June 2022. The Council’s internal review decision of 27 June 2022 affirmed its refusal of the request.
On 5 August 2022, the applicant applied to this Office for a review of the Council’s decision. During the review, he agreed to exclude two paragraphs and two other brief references in the report, which concern the report’s authors.
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, correspondence between this Office and the Council, various third parties and the applicant. I have also taken into account the contents of the record at issue and the provisions of the FOI Act.
The scope of this review is confined to whether the Council’s decision to refuse access to the report was justified under the provisions of the FOI Act. It does not cover the details excluded by the applicant.
Content of decisions
The applicant notes that the Council’s decisions do not explain why it considers sections 29(1) and 30(1)(c) to apply, or describe any public interest factors taken into account.
While this review cannot take account of the quality of the Council’s decisions, I remind the Council to ensure that it complies with the FOI Act’s requirements for the content of decisions. Further to sections 13(2)(d) and 21(5)(c) of the FOI Act, where an FOI body decides to refuse to grant a request, the notification of the decision shall specify various details including:
Section 25(3) of the FOI Act requires the Information Commissioner to take all reasonable precautions in the performance of his functions to prevent the disclosure of information contained in an exempt record or that would cause the record to be exempt if it contained that information.
I have had regard to the comments of the Supreme Court’s judgment in The Minister for Communications, Energy and Natural Resources and the Information Commissioner & Ors,  IESC 57  (the eNet judgment). The Supreme Court said “it is the FOI body that must explain and justify a conclusion that the records are exempt by reference to the relevant provisions of the Act, and equally, it is the FOI body that must explain why the public interest does not justify release in the public interest.” I also note that, in the Supreme Court case of Sheedy v the Information Commissioner  IESC 35, Kearns, J. made it clear that a general prediction without any supporting evidence is not sufficient to satisfy the requirement that access to the record could reasonably be expected to result in the outcome envisaged. He stated that “[a] mere assertion of an expectation of [prejudice] could never constitute sufficient evidence in this regard”.
However, while FOI bodies must justify their decisions, the eNet judgment in particular also says that a failure by an FOI body to do so does not lead to an inevitable or statutorily mandated outcome. Rather, the Commissioner must adjudicate the merits of the decision to refuse by reason of an analysis of the records and the interests engaged, which might suggest either disclosure or refusal.
Bearing in mind the requirements of section 25(3), I can say only that the requested report comprises an analysis of various matters, including submissions from third parties consulted with by the authors, and outlines various options and recommendations.
Section 29 (deliberative processes)
Section 29 - general
Section 29(1) provides that a head may refuse to grant an FOI request (a) if the record concerned contains matter relating to the deliberative processes of an FOI body (including opinions, advice, recommendations, and the results of consultations, considered by the body, the head of the body, or a member of the body or of the staff of the body for the purpose of those processes), and (b) the granting of the request would, in the opinion of the head, 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.
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 FOI bodies to show to the satisfaction of the Commissioner that both requirements have been met.
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 at section 29(1)(b) is a stronger public interest test than the public interest test in 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). Any arguments against release should be supported by the facts of the case and it should be shown how release of the record(s) would be contrary to the public interest e.g. by identifying a specific harm to the public interest flowing from release.
There is nothing in the exemption itself which requires the deliberative process to be ongoing but this issue may be relevant to the issue of the public interest. The Commissioner has found that the Act clearly envisaged that there will be cases in which disclosure of 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.
Finally, section 29(2) provides that subsection (1) does not apply to a record if and in so far as it 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.
The applicant disputes that the report can be part of a meaningful deliberative process at this point in time. He says that there is a clear public interest in its disclosure given “the ongoing issues of the ambulance service” and contends that the Council’s decision is based on a paternalistic view as to what is best for the people of Dublin and beyond.
The Council’s internal review decision refers to discussions on DFB resources and personnel levels involving trade unions and the Council/DFB management, under the auspices of the Workplace Relations Commission (WRC), which it says have been underway for some time. It says that, while some progress has been made, no final agreement has been reached and that it cannot identify any exceptional circumstance that would warrant release of the record.
In inviting its submissions, I asked the Council to explain why section 29(1) had been relied on, having regard to sections 29(2)(b), (d) and (e) of the FOI Act in particular. I said that, if continuing to rely on section 29(1), the Council should also explain why it considers it contrary to the public interest to release the record. I asked it to explain how the ongoing WRC discussions may be affected by release of a six-year old record, or to describe any other harm that may flow from its release.
The Council says that the review gathered information from various sources. It says that the report “continues to form part of an ongoing deliberative process” and that the options and recommendations therein “are still available to DFB.” It says that the Covid-19 pandemic impacted on the timeframes for consideration and implementation of the report’s options and recommendations. It says that that DFB needs space to consider the competing and significant courses of action over time. It says that release of the report would make the requester aware of DFB’s decision making processes regarding the future of the ambulance service across Dublin.
Regarding the public interest, the Council says that there is a “need to preserve confidentiality, having regard to the subject matter and circumstances of the communications”. It says that there is a need to prevent the impairment of future decisions and the decision making process without countervailing benefit to the public. It says that it must recognise “broader community and public interests, as distinct from those of the applicant and the subject of the records”. It says that disclosure would “not fairly disclose the reasons for a decision making process” and that there is a need to avoid “serious damage to the proper working of local government at the highest level.”
The Council says that the public has a right to access information, and a need to be better informed and more competent to comment on public affairs. It says that there is a need to ensure democratic control to the greatest extent possible. It says that the record’s release “will reveal reasons for decisions” and contribute to public debate. It says that release would promote accountability of administrators and the use of public monies, and enable scrutiny of decision making processes.
The Council says that “[s]ection 29(2) – sub-sections (b) and (e) are not relevant … for the reasons outlined above.” It says also that the factual information in the report is linked to, and forms the basis of, the options and recommendations outlined therein, and should be considered as part of the ongoing deliberative process of DFB.
The Council appears to argue that it is not in the public interest to find section 29(2) to apply. However, section 29(2) mandates that section 29(1) does not apply to certain types of records and information, including a report of an analysis of the performance, efficiency and effectiveness of an FOI body in relation to a particular function of the public body. The Council has not commented on, or disputed, my view that the requested record is such a report (the relevant function being DFB). I have no basis to form a different view, and I find that section 29(2)(d) of the FOI Act applies. I find, in turn, that section 29(1) does not apply to the record.
Although it is not necessary for me to consider the Council’s arguments on section 29(1) in the circumstances, the Council should ensure that its future decision making considers whether release of the relevant record(s) is contrary to the public interest e.g. by identifying a specific harm to the public interest flowing from release. In this case, it appears to have carried out a public interest balancing test on the lines of what is required by other exemption provisions. Furthermore, even if deliberations remain ongoing in relation to the report, this does not of itself mean that its disclosure at this point in time is contrary to the public interest.
Section 30(1)(c) – disclosure of negotiating positions or procedures
Section 30(1)(c) - general
Section 30(1)(c) provides that a head may refuse to grant an FOI request 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. Further to section
30(2), section 30(1)(c) does not apply where in the head’s opinion, the public interest would, on balance, be better served by granting than by refusing to grant the FOI request concerned.
Section 30(1)(c) does not contain a harm test. It is sufficient that access to the record concerned could reasonably be expected to disclose negotiation positions, plans etc. There is no requirement to take a view on the consequences of the disclosure of those positions, or that disclosure would have an adverse effect on conduct by the Government or the FOI body of its negotiations. However, this matter may be relevant to the public interest test in section 30(2).
An FOI body relying on section 30(1)(c) should identify the relevant negotiations at issue. It must also show to the Commissioner that release of the record could reasonably be expected to disclose positions taken (or to be taken) or plans etc. used or followed (or to be used or followed) for the purpose of any negotiations.
The applicant does not make any specific comment on the Council’s application of section 30(1)(c). In inviting the Council’s submissions, I said that the report does not appear to contain details of any negotiation positions and/or procedures that the Council may have adopted further to consideration of its contents. I asked the Council to explain why section 30(1)(c) is considered to apply in these circumstances.
The Council refers to the ongoing WRC discussions and the sensitive nature of related negotiations. It reiterates that no final agreement has been reached. It says that DFB management have given priority to meeting regularly with union representatives to progress items. It says that release of the record would harm and interfere with this process, and thereby prejudice the effectiveness of the ongoing negotiations, by disclosing the options and recommendations open to the DFB in relation to the provision of emergency ambulance services.
Generally speaking, on receipt of a report like that at issue, one would expect an FOI body to examine the options and recommendations therein, and decide whether to fully or partially accept some or all of those recommendations. One would expect it to then consider and adopt suitable positions and procedures for any negotiations that may be needed.
The Council’s submission indicates both that deliberations on the report are ongoing and that it is involved in sensitive negotiations. In particular, however, the Council does not dispute or comment on my view that the report of itself contains no details of positions and/or procedures used, or to be used, for the purpose of those or other negotiations. Having considered the report, I remain of this view.
In the circumstances, I find that section 30(1)(c) does not apply. There is no need for me to set out or consider the Council’s arguments in relation to the public interest test at section 30(2).
When inviting the Council’ submissions, I said that if it wishes to rely on other exemptions provided for under the FOI Act, it should show how the requirements of such exemptions are met in this case, addressing the public interest where relevant.
The Council does not rely on any further exemption provisions. It only makes various assertions as to harms that may result from release of the report.
One such assertion concerns the confidentiality of communications. I invited comment from those third parties whose submissions are contained in the report. I told them that, if no reply was received by a particular date, the review would proceed on the basis that they did not object to release of the record and/or had no comments to make.
Two third parties confirm that they do not object to the release of the report or their submissions. No comments have been received from the other parties. I have therefore proceeded on the basis that no third party interests will be affected by granting access to the report.
Finally, the Council does not elaborate on either the deliberations which it says are ongoing or on the negotiations to which it refers. Neither does it explain how, in all of the circumstances, the harms which it asserts could result from the release of the report at this point in time could arise.
Having carried out a review under section 22(2) of the FOI Act, I hereby vary the Council’s decision and I direct it to grant access to the report, subject to redaction of the details excluded by the applicant.
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.