Case number: 170514
10 May 2018
Wind energy development is guided by the Wind Energy Development Guidelines 2006 (the 2006 Guidelines). In December 2013, the Department published draft revisions to certain aspects of the 2006 Guidelines for public consultation. The 2016 Programme for a Partnership Government reinforced the commitment to conclude the review. On 13 June 2017, the Minister for Housing, Planning, Community and Local Government and the Minister for Communications, Climate Action and Environment announced a preferred draft approach in relation to the key aspects of the review. They also announced that, as required by the EU Strategic Environmental Assessment (SEA) Directive, an SEA would be undertaken on the proposed approach. The press release said it was envisaged that once the SEA has concluded, the revised Guidelines will be formalised, and issued in Q1 2018.
On 20 June 2017, the applicant made an FOI request to the Department. Referring to the Ministers' joint statement, he sought all records relating to the subject matter of the statement, or on which the Department's Minister relied or to which he had regard when formulating the preferred draft approach, dating from 1 January 2013 to 13 June 2017.
The Department's decision of 15 August 2017 concerned 147 records. It granted full access to records 10, 19 and 31 and refused access to records 1-9, 11-18, 20-23 and 25 under section 29 (deliberative processes). It granted partial access to the rest, on the basis that the redacted details comprised third party personal information that was exempt under section 37.
The applicant sought an internal review of the Department's decision on 11 September 2017, which the Department affirmed on 2 October 2017. On 1 November 2017, the applicant sought a review by this Office of the Department's decision. He later confirmed that he wanted the review to consider only those records refused under section 29.
I have now decided to conclude my review by way of a formal, binding decision. In carrying out my review, I have had regard to details of the above exchanges and to correspondence between this Office, the Department, third parties that were consulted by my Office during the review, and the applicant. I have had regard also to the records considered by the Department and to the provisions of the FOI Act.
This review is confined to whether the Department has justified its refusal to grant access to records 1-9, 11-18, 20-23 and 25. The Department provided copies of the records to this Office electronically, which included records designated as "R3-7" and "R15-16". These, respectively, contained further copies of records 3 to 7 and 15 to 16 as well as cover emails forwarding these documents internally within the Department. While the cover emails were not listed on the Department's schedule of records, I have included them in my review and will refer to the cover emails as records R3-7 and R15-16.
In the course of the review, the applicant confirmed that he did not want access to names of individual employees of third party companies contracted by the Department. He also said that he did not seek details identifying other persons acting solely in their capacity as employees of an identified company.
Accordingly, the following details are outside the scope of this review:
Section 22(12)(b) places the onus on the Department to justify its refusal to grant access to the records. This Office invited submissions from the Department in relation to section 29 and also told it that if it wished to rely on other exemptions, it should explain why it considered them to apply. The Department's submission of 18 December 2017 dealt only with section 29.
Section 29 - Deliberations of FOI bodies
The Commissioner's Approach to Section 29
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.
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. It is therefore important for FOI bodies to show to the satisfaction of the Commissioner that both requirements have been 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 my view, this exemption tends more strongly towards release of records, and public bodies have a higher hurdle to overcome in demonstrating that it applies.
Therefore, public bodies must show, to this Office's satisfaction, that release of the material at issue would be contrary to the public interest. Generally speaking, this requires a body to identify a specific harm to the public interest flowing from release. While there is nothing in the 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 an FOI body proposes to make.
The Department's Arguments
It appears to me that most of the Department's five page submission is based on the content of an Information Note that was published in July 2017, following the Ministers' joint announcement of the preferred draft approach. I see no need to repeat the details concerned.
The submission also refers to the need to maintain Ireland's ability to provide investment certainty, which the Department says is important in order to stimulate the growth of indigenous renewable technology solutions that can deliver European Union targets at least cost to the consumer. It also says that, while good progress has been made towards meeting Ireland's binding target of delivering 16% of energy requirements from renewable sources by 2020, achieving it remains challenging.
The Department says that granting access to the records would have the potential to reduce investment in the wind energy sector, weaken Ireland's ability to meet the 2020 target and ultimately contribute to increasing the costs of compliance and the financial burden on the taxpayer.
It says that granting access would be contrary to the public interest for a number of reasons. When the SEA is concluded, the revisions to the 2006 Guidelines (to which the records relate) will be finalised and come into effect. Therefore, the deliberations by the two relevant departments are not yet complete. Granting access to the records at this stage would interfere with and prolong the deliberative process and risk causing further delay to the finalisation of the guidelines. It would also risk jeopardising the SEA process by introducing uncertainty through the release of selected records that would distract from the public consultation. Access would not provide clarity to the public in that such access would not provide the full context of the decision making process. It would risk misleading the public as to the assessment and factors that inform the final revisions to the 2006 Guidelines. The Department also says that there are sensitive policy issues still at the level of negotiation between Government Ministers and Departments which ultimately will require a Government Decision.
The Applicant's Arguments
It is the applicant's position that submissions from the public have been published and that submissions by other interested parties and advisory parties should be treated similarly. He says that the only topic remaining under deliberation is the SEA and that the withheld records cannot relate to that topic. Essentially, he is arguing that the records relate to a part of the deliberative process that has now concluded.
I accept that these records were prepared for and relate to the deliberative processes concerning the revision of the 2006 Guidelines. I find that section 29(1)(a) applies.
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. Section 11(3) of the FOI Act is also relevant. Section 11(3) 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".
Thus, in considering section 29(1)(b) in this particular case, I accept that access to the records would serve the public interest in ensuring transparency in and accountability for the work done to date in the Department's revisions of the 2006 Guidelines. I believe that this public interest is entitled to significant weight in this case, given the environmental nature of the records and the length of time the revision process has taken to date. Furthermore, while not representing a complete picture of the revision process, the records would inform the public and other stakeholders to at least some extent on the material considered to date. Thus, access would enable more informed participation in the as yet unconcluded revision process than would otherwise be the case.
In considering the public interest weighing against release, I have no reason to accept that the grant of access to the records could result in the requester becoming aware of a significant decision that an FOI body proposes to make (a specific consideration required by section 29(1)(b)). It is clear from the Department's arguments that a final decision on the form of the revised Guidelines has yet to be made.
I accept that there is a possibility that certain commentators may take issue with the revision process to date having regard to the content of the records at issue and also that the records will be read outside of the context of other material that will be available to the Departments when making the final decision on the revisions to the 2006 Guidelines.
In addition, I accept that FOI bodies are entitled to appropriate time and space to consider all matters relevant to a deliberative process and that there is a public interest in this case in the revisions to the 2006 Guidelines being decided upon efficiently and without undue interference. In this regard, I note the comment in the Department's submission (which is also referred to in the published Information Note) that over 7,500 submissions expressing often conflicting views and concerns were received in the public consultation already carried out.
However, in my view, numerous or lengthy submissions and informed comment would not necessarily amount to undue interference with, or distraction from, the SEA process. As I said above, access would enable more informed public and stakeholder participation in the ongoing revision process than would otherwise be the case. I do not consider that it would be contrary to the public interest to direct access to records that may not "provide [the] clarity to the public" that would otherwise be provided by a final decision on the necessary revisions. Neither do I consider it contrary to the public interest for the records to be placed in the public domain without all other material that would be available to the Departments when making their final decision. On a related note, the possible misinterpretation of a record to which access is granted under the FOI Act, or the possibility that the content of a record may provoke criticism, is not a sufficient basis for refusing to grant access to that record.
While further deliberations will be carried out on foot of the SEA, this does not, of itself, mean that it is contrary to the public interest to refuse access to all records in any way relevant to the overall revision process. In this regard, the Department was asked to comment on the applicant's argument that the records relate to a part of the deliberative process that has now concluded. It did not do so.
In addition, the Department does not appear to have considered whether, or how much, harm might be caused to the further deliberations by reference to the actual content of the various records. I am bound by section 25(3) of the FOI Act not to disclose the content of records that are claimed to be exempt. By way of non-exhaustive examples, however, it seems to me that record 1 (dated 9 June 2017 and described in the Department's schedule as "frequently asked questions") is intended to be a document on which a speaker could rely when facing questions at that particular point in time. Records 17 and 20 are particularly general.
While I accept that some records are more detailed than others, I have no argument before me as to how the grant of access to that more detailed content could impact on the deliberations. In addition, while the Department has described various harms it envisages from release of the records, it has not explained how, in the circumstances, the various records could or would reduce investment in the wind energy sector, weaken Ireland's ability to meet the 2020 target or increasing the costs of compliance and the financial burden on the taxpayer. Neither has it explained what are the sensitive policy issues requiring negotiation between Government Ministers and Departments and how the grant of access to these particular records might affect these negotiations.
I should stress that I have also had regard to section 11(7)(b), which provides that "[n]othing in this section shall be construed as applying the right of access to an exempt record ... where the exemption operates by virtue of the exercise of a discretion that requires the weighing of the public interest, if the factors in favour of refusal outweigh those in favour of release." This, in my view, reflects the requirements of section 22(12)(b) that the Department in this case must justify its refusal to fully grant the request. 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.
Overall, having considered the Department's submission and the clear requirements of section 29(1)(b), I do not consider the Department has justified its position that the grant of access to the records would be contrary to the public interest. I find that section 29(1)(b) does not apply.
Summary - Section 29(1)
The Department has not justified its application of section 29(1) to the records under review and although invited to, has not sought to rely on any other exemptions.
While, further to section 22(12)(b), the records fall to be granted, the Commissioner takes the view that it would not be appropriate to direct the release of a record that is subject to a mandatory exemption or clearly on its face is not subject to the FOI Act. Furthermore, some of the records contain documents and/or information provided to the Department by two private companies, and by ESB Networks Limited (ESBNL) and Eirgrid (bodies partially subject to FOI operating in the commercial sector) the interests of which I will consider.
Section 28(2) - Statements Made at Meetings of Government
The Department did not apply section 28 to any of the records. However, while section 28(1) may be relied on at the discretion of the FOI body, section 28(2)(a) is a mandatory exemption. Section 28(2)(a) provides that a head shall refuse to grant an FOI request if the record concerned contains the whole or part of a statement made at a meeting of the Government or information that reveals, or from which may be inferred, the substance of the whole or part of such a statement. Such a record is indefinitely exempt. Section 28(2)(a) is subject to certain exceptions, which do not apply in this case. The provision does not require consideration of the public interest, which reflects the Constitutional requirement for the confidentiality of discussions at meetings of Government.
None of the records seem to me to detail actual discussions that took place at a Government meeting. However, while record 4 is described in the Department's schedule as speaking notes, the record describes itself as a speaking note for a Cabinet meeting. I accept that its content discloses the position of the Minister from which may be inferred the substance of a statement made at the Cabinet meeting. I find record 4 to be exempt under section 28(2)(a). The record is different from, say, briefing notes given to a Minister in advance of a Government meeting. Such briefing notes do not necessarily contain information that reveals, or from which it may be inferred, the substance of the whole or part of any statement made by the Minister at a Government meeting. Thus, having regard to the contents of the records and in the absence of argument from the Department, I have no reason to consider section 28(2)(a) to apply to any further records.
Section 31(1)(a) of the FOI Act is a mandatory exemption applying to a record that would be exempt from production in proceedings in a court on the ground of legal professional privilege. Legal professional privilege enables the client to maintain the confidentiality of two types of communication, including confidential communications made between the client and a professional legal adviser for the purpose of obtaining and/or giving legal advice (advice privilege).
Advice privilege attaches to confidential communications made between the client and his/her professional legal adviser in a situation where the legal adviser is acting in a professional capacity. The concept of "once privileged always privileged" applies to advice privilege, and thus, unless otherwise lost or waived, lasts indefinitely. I accept that part of the third bullet point (i.e. the main bullet point and first sub bullet underneath) on the fifth page of the attachment to record 13 contains details of legal advice sought by the Department, which I find to be exempt under section 31(1)(a) of the FOI Act.
Third Party Information - Sections 35 and 36
ESBNL and Eirgrid are partially subject to FOI. This Office consulted them in relation to whether their commercial interests might be affected by the release of the records. Both confirmed that they had no objections to access being granted to the records.
This Office also consulted with the two private companies. In light of the submissions they made, I have considered the application of sections 35 and 36 to those records the release of which might affect their interests.
Section 35(1) provides for the mandatory refusal of an FOI request for a record that, generally speaking, contains information given in confidence or contains information subject to a duty of confidence.
However, section 35(2) is also relevant. This provides that subsection (1) shall not apply to a record which is prepared by a head or any other person (being a director or staff member of an FOI body or a service provider) in the course of the performance of his or her functions "unless disclosure of the information concerned would constitute a breach of a duty of confidence that is provided for by an agreement or statute or otherwise by law and is owed to a person other than an FOI body or head or a director, or member of staff of an FOI body or of such a service provider." In other words, section 35 cannot apply to any records created by the Department or a service provider unless disclosure would breach a duty of confidence owed to a party other than the Department or the service provider.
Records 8, 11 and 14 are briefings provided by one of the private companies which the Department confirms it contracted to provide independent advice as part of revising the 2006 guidelines. The company argues that section 35 applies to the records and that, for instance, disclosure will prejudice the giving of similar information to the Department in the future, presumably by it or other service providers. However, further to section 35(2), section 35(1) can only be relied on in relation to information about a party other than the Department or the company.
The company says that the information and graphics in slides 8, 12, 14, 15, 17 and 18 of record 8 were used for illustrative purposes but were taken from a separate project undertaken for a different client under another contract. It has not given me enough information to be satisfied that it owes any duty of confidence to any other client in relation to the information in the slides. The slides do not refer to the other client or the project and bear no indication that their contents are particularly sensitive or confidential. The company's submission does not describe any confidentiality requirements that bind it in relation to the details. Neither does it refer me to any contacts it may have had with the Department specifying the sensitivity of any details in the records. I have no grounds to consider the slides to be exempt under section 35.
In summary, I find section 35 not to apply to any of the records.
Section 36(1)(b) is a mandatory exemption that must be applied to certain types of information whose disclosure could reasonably be expected to result in material financial loss or gain to the person to whom the information relates, or could prejudice the competitive position of the person in the conduct of his or her profession or business or otherwise in his or her occupation. The essence of the test in section 36(1)(b) is not the nature of the information but the nature of the harm which might be occasioned by its release.
The harm test in the first part of section 361(b) is that disclosure "could reasonably be expected to result in material loss or gain". I take the view that the test to be applied is not concerned with the question of probabilities or possibilities but with whether the decision maker's expectation is reasonable.
The harm test in the second part of section 36(1)(b) is that disclosure of the information "could prejudice the competitive position" of the person in the conduct of their business or profession. The standard of proof to be met here is considerably lower than the "could reasonably be expected" test in the first part of this exemption. However, this Office takes the view that, in invoking "prejudice", the damage which could occur must be specified with a reasonable degree of clarity.
In the High Court case of Westwood Club v The Information Commissioner  IEHC 375 Cross J. held that it is not sufficient for a party relying on section 36(1)(b) to merely restate the provisions of the section, list the documents and say that they are commercially sensitive. A party opposing release should explain why disclosure of the particular records could prejudice their financial position.
Application of Section 36 to the Records
Record 12 concerns a proposed meeting between the Minister and representatives of the second private company which was not under contract to the Department. It includes an agenda proposed by the company, a Departmental briefing note for the Minister, and other details of the Department's preparations for the meeting.
The company does not object to the disclosure of the fact of the meeting or the agenda. I note that it did not argue that access might disclose any personal information that may be in emails regarding the agenda, which I take to be its consent to the disclosure of such information. However, the company says that it does not otherwise want commercially sensitive information about it that may be in the Departmental briefing note (such as, say, details of its future plans) to be released.
The note contains a brief and general reference to the company. I am satisfied that there is no information about the company in the record which I would consider to be of interest to its competitors and exempt under section 36 (or section 35). I direct that access be granted to record 12.
As already mentioned, records 8, 11 and 14 are briefings provided by the first private company further to its contract for services with the Department. The company argues that, as well as being exempt under section 35, they are exempt under section 36.
The company says that disclosure of slides 8, 12, 14, 15, 17, and 18 of record 8 would place it at a material financial loss and prejudice its competitive position on any future, similar, contracts in the public and private sector. It says that the details in slides 11 and 16 represent its opinion and that disclosure may prejudice future opportunities for the company on contracts related to wind energy for the Department and other clients. I take it that the company has no objections to disclosure of the rest of the 19 slides in record 8.
The company says that record 11 details its approach and methodology to delivering the contract for the Department. It says the record shows its "approach and methodology to delivering the services required under the contract." It says that the record includes the company's commercially sensitive methodology (i.e. how it carried out the project) and is not solely the results of its work, in that it refers to modelling assumptions and the company's approach to and flow-charts for the process that have been developed and used by the company. It says that if this information is made public, it will provide the company's competitors with valuable information on how it delivered this and similar projects, and put the company at a distinct commercial and technical disadvantage when it tenders for any future similar work, not solely work undertaken for the Department.
The company says that record 14 is the company's opinion and that, if access is granted, it could be used by competitors against it. It says that this will place it at a material financial loss and prejudice its competitive position on any future similar contracts in the public and private sector.
I also note that records 18, 21, 23 and 25, which were created by the Department, refer to the company's views and inputs to varying degrees. I take it that the company would consider section 36 to apply to the relevant parts of these records too.
The grant of access to records under FOI is accepted to be the same as release of the relevant records to the world at large. I accept that, to varying degrees, the records contain the company's views and opinions. I am also prepared to accept that the grant of access to the records would give an insight into how the company provided the particular service that it was contracted by the Department to provide. The company does not explain how the various harms it has asserted will arise could arise. For instance, it does not explain how the assumptions relied on in the particular circumstances of this project are proprietary. However, the standard of proof required for section 36(1)(b) to apply is quite low.
I am prepared to accept that release of the relevant slides in record 8, records 11, 14 in full and details of the company's analysis as described or referred to in record 18, would give competitors at least a minimal insight into how the company delivered the project that they would not otherwise have had. I accept that such insight could be to the advantage of such competitors when competing with the company for other work, for instance, by enabling them to illustrate how they could have delivered the service differently. I accept that the grant of access to these records could prejudice the first private company's competitive position in the conduct of its business and that section 36(1)(b) applies to them.
While the references to the company's views, as contained in records 21, 23 and 25, are much more general, I am also prepared to accept that section 36(1)(b) applies to the details concerned.
A record that is exempt under section 36(1)(b) may be released if certain circumstances apply (section 36(2) refers), or if the public interest in favour of its release outweighs the public interest that it be withheld (section 36(3) refers). I do not consider section 36(2) to be relevant in this case.
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) (the Rotunda case). It is noted that a public interest ("a true public interest recognised by means of a well known and established policy, adopted by the Oireachtas, or by law") should be distinguished from a private interest. Although these comments were made in relation to another provision of the FOI Act, I consider them to be relevant to consideration of public interest tests generally.
I have already set out at length my views on the public interest in favour of the grant of access to records in this case. It follows that I consider there to be a significant weight attached to the disclosure of views and opinions that the company was contracted to provide to the Department as part of the revision process, as well as details of the extent to which the Department has had regard to those views and opinions. While the public interest in favour of access to such records has been served to some extent by the records already granted, it would be further served by the grant of access to records I have found to be exempt under section 36(1)(b).
On the other hand, section 36(1)(b) itself reflects the public interest in the protection of records containing information that could prejudice a private company's competitive position in the conduct of its business. This Office takes the view that the FOI Act was designed to increase openness and transparency in the way in which FOI bodies conduct their operations and, in general terms, it was not designed as a means by which the operations of private enterprises were to be opened up to scrutiny.
The fact remains that the company was contracted by the Department to provide it with the information in the records at issue. It was, presumably, paid public monies to do so. Access to the information is, in my view, necessary to enable scrutiny of both the wider revision process and of the advice that the company was contracted to provide.
Having carefully weighed the competing public interest factors in favour of and against release, in the circumstances of this case I find that, on balance, the public interest in granting access to slides 8, 11, 12, 14, 15, 16, 17, and 18 of record 8, to records 11, 14 in full, and to the references to the company and/or its services and analysis as contained in records 18, 21, 23 and 25, outweighs the public interest that access to such details should not be granted.
Section 42(j) - Restriction of FOI Act
Section 42(j) provides that the FOI Act does not apply to a record given by an FOI body to a member of the Government for use by him or her for the purposes of any proceedings of the Houses of the Oireachtas.
Record 6, according to both the Department's schedule and the record itself, is called a "Note for Leaders' Questions". Although the Department has not relied on section 42(j) in relation to record 6, I accept it was for use for "the purposes of any proceedings" in the Dáil i.e. Leaders' Questions. I have no reason to consider that the record was not provided to a member of Government. I find that it is outside of the scope of the FOI Act further to section 42(j).
Having carried out a review under section 22(2) of the FOI Act, I hereby vary the Department's decision.
I affirm its refusal to grant access to records 4 and 6, although under sections 28(2)(a) and 42(j) of the FOI Act rather than section 29. Similarly, I affirm its refusal of part of the third bullet point (i.e. the main bullet point and first sub bullet underneath) on the fifth page of the attachment to record 13 under section 31(1)(a).
While I find that section 36(1)(b) applies to slides 8, 11, 12, 14, 15, 16, 17, and 18 of record 8, records 11, 14 in full, and references to the first private company and/or its services and analysis as contained in records 18, 21, 23 and 25, I find the public interest that access be granted to such information outweighs the public interest that access should not be granted. I direct the Department to grant access to these records.
Finally, I annul the Department's refusal of the rest of the records (whether in full or in part) and direct it to grant access to them.
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 requester 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.