Case number: OIC-118786-R6H3S9
26 September 2022
In a request dated 31 May 2021, the applicant sought access to all records pertaining to the policy of Appropriate Assessment as adopted and implemented by the Forest Service. He specified that he was seeking all records with respect to the following:
He also asked for all official notes including worksheets and all and any communications and scratch work done in the formulation of the policy of Appropriate Assessment.
In a decision dated 25 June 2021, the Department refused the request under section 29(1) of the Act on the basis that the records contained matters relating to a deliberative process. The applicant sought an internal review of that decision on 9 July 2021. He argued that the reasons for the decision taken to extend the radius relating to appropriate assessments from 3km to 15km requires clarity.
The Department affirmed its decision on 30 July 2021. In its internal review decision, the Department said, in response to parts 1 and 2 of the request, that Appropriate Assessment is a statutory requirement under the European Communities (Birds and Natural Habitats) Regulations 2011 (S.I. No. 477/2011) which gives effect to European directives and as such, the Department was not “made aware” or “informed” of the requirement to implement Appropriate Assessment. The applicant applied to this Office for a review of the Department’s decision on 2 February 2022.
I have now completed my review in accordance with section 22(2) of the FOI Act. In carrying out my review, I have had regard to the submissions made by the Department and by the applicant. I have also examined the records at issue. I have decided to conclude this review by way of a formal, binding decision.
In the Schedule of Records provided to this Office, the Department identified 60 records as falling within the scope of the applicant’s request. Accordingly, this review is concerned with whether the Department was justified in refusing access to those records under section 29(1) of the Act.
Before I address the substantive issues arising in this case, I wish to make a few preliminary comments.
First of all, in his request for review and in a further submission to this Office, the applicant set out the difficulties that he has faced as a forester since the radius for Appropriate Assessment was increased. He said that this has led to long delays and increased costs in getting forestry applications approved and that this has had a detrimental impact on his livelihood and, by extension, his own health and well-being. He also said that this change has significantly damaged the forestry industry in Ireland. As the Investigator explained to the applicant, this Office has no role in the investigation of complaints regarding the manner in which FOI bodies perform their functions generally or to act as an alternative dispute resolution mechanism. Moreover, the FOI Act provides that in deciding whether to grant or refuse a request, any reason that the requester gives for the request must generally be disregarded. This means that this Office cannot have regard to an applicant's motives for seeking access to the information in question, except in so far as those motives reflect what might be regarded as public interest factors in favour of release of the information, where the Act requires a consideration of the public interest.
Secondly, it is important to note that section 22(12)(b) of the FOI Act provides that in a review by the Commissioner, a decision to refuse a request is presumed not to have been justified unless the FOI body shows to the satisfaction of the Commissioner that the decision was justified. In this case therefore, the onus is on the Department to satisfy this Office that its decision to refuse to grant access to the records was justified.
Thirdly, the original decision letter issued to the applicant on 25 June 2021 referred to a Schedule of Records being attached. It described this schedule as listing the documents that the Department considered relevant to the request, a description of each document, and a reference to the section of the FOI Act which applied to prevent release. No such schedule, or indeed any schedule, was provided to the applicant. This was confirmed to the Investigator by the Department and by the applicant.
A schedule was provided to this Office for the purposes of the review, listing 60 records under 23 different categories. It did not, however, number each record or follow the format that the Department referred to in its own decision letter and as recommended in the FOI processing manuals published by the Central Policy Unit (CPU) of the Department of Public Expenditure and Reform, which I am sure the Department is familiar with. I urge the Department to take appropriate measures to ensure that its decision makers are all familiar with the CPU guidance materials and that they are used when processing requests, including the provision of a Schedule of Records in the recommended format to requesters when a decision on their FOI request is made in the first instance.
Section 29(1) of the Act provides for the discretionary refusal of a request if (a) the record 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) granting the request would be contrary to the public interest. Without prejudice to the generality of paragraph (b), the FOI body is required, in determining whether to grant or refuse to grant the request, to 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 exemption at section 29(1) has 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. Furthermore, the public interest test at section 29(1)(b) is a strong test. 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.
Section 29(2) provides that the exemption does not apply to records containing five specified categories of information. Where an FOI body is relying on section 29(1) for the refusal of a record, it is very important to go on to consider whether section 29(2) applies in relation to the record concerned before reaching a conclusion on the application of the exemption.
As stated earlier, Appropriate Assessment is a statutory requirement under the European Communities (Birds and Natural Habitats) Regulations 2011 (S.I. No. 477/2011). In its submissions, the Department said that the deliberative process reflected in the records is the discussion of how this law was to be written into Forestry Procedures. It said that the implementation of Appropriate Assessment evolves over time, depending on the changing nature of the industry and subsequent environmental legislation. However, the Department said it always keeps the public up to date on how Appropriate Assessment is considered as part of the [forestry] application process. It referred to the provision of relevant information on the Department’s website, including in the Forestry Programme 2014-2020 and in the Forest Service’s Appropriate Assessment Procedure (AAP) Information Note.
The Department said that it believed that the release of the information being requested would undermine the development of policy in this sensitive area and that is especially unnecessary in the context set out above (i.e. the information already publicly available). It said that the Appropriate Assessment process is clearly set out in the Forestry licencing process.
A ‘deliberative process’ as envisaged by section 29(1)(a) 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.
It is worth restating that for section 29(1) to apply, the record must contain matter relating to the deliberative processes of an FOI body. Accordingly, a decision to refuse access under section 29 must have regard to the nature and contents of each record falling within the scope of the request. In our request for submissions, we asked the Department to provide all information relevant to its claims for exemptions for each of the records concerned. In response, the Department said that “As regards reference to “each of the records concerned” this is not relevant here as the Department did not collate the records being requested as the request clearly does not meet the FOI criteria, hence the reference to section 29 of the FOI Act”.
I must admit that, in circumstances where the Department had, at that stage, provided this Office with copies of what it deemed to be 60 relevant records, I am unclear as to its precise point. What it appears to suggest, however, is that the Department essentially took a blanket approach in its decision to refuse the request without having considered the contents of any relevant records. Section 29 is not a class-based exemption; each record must be considered in its own right. I note that 20 of the records identified by the Department date from 2011 to 2013, while the remaining records are dated between 2018 and 2020. I have examined each of these individual records.
It is the Department’s position that the deliberative process in this case is the discussion of how Appropriate Assessment, as a statutory requirement, is reflected and written into Forestry Procedures. In these circumstances, I would expect to find in the records examples of exchanges of views or opinions on how to adopt Appropriate Assessment, perhaps the minutes of meetings wherein this was discussed, or maybe proposals being made for consideration in the Department or for discussion with other stakeholders. Having carefully gone through the 60 records, I have found none of this type of information whatsoever.
Instead, the records consist of circulars, memos, information and guidance notes, template screening forms, manuals, and standard operating procedures. There is a good deal of repetition within the records, with different versions of the same document at different points in time. While a deliberative process may have led to the creation of some of these records, it is not apparent that the records themselves contain matter relating to the deliberative processes of the Department (or indeed of another FOI body). Accordingly, I am not satisfied that the records relate to a deliberative process as envisaged by section 29. Moreover, I do not accept that the release of the records would make the applicant aware of a significant decision that the Department proposes to make. Having regard to the provisions of section 22(12)(b) as outlined above, I am not satisfied that the Department has satisfactorily shown that the records at issue relate to the deliberative processes of the Department. I find section 29(1)(a) does not apply.
I should add that even if I were to find section 29(1)(a) to apply, I am satisfied that section 29(2), which serves to dis-apply section 29(1), is relevant in this case. For example, I consider that many of the records contain rules, procedures and guidelines intended for use in making decisions, determinations and recommendations (section 29(2)(a) refers). I note that the Department made no submissions on section 29(2) and its potential applicability to some or all of the records at issue, despite being specifically asked this in our request for submissions. However, given my conclusion on section 29(1)(a), I do not consider it necessary to consider the applicability of the various exceptions in section 29(2) to the records in this case.
As the requirements of both section 29(1)(a) and 29(1)(b) must be met in order for section 29(1) to apply, I find that section 29(1) does not apply and I have not gone on to consider whether release of the records would be contrary to the public interest.
Section 37(1) requires the FOI body to refuse a request, subject to the other provisions of section 37, where it considers that access to the record concerned would involve the disclosure of personal information relating to an individual or individuals other than the requester. While the Department refused access to the records under section 29(1), it seems to me that section 37 is relevant to record 11. As section 37(1) is a mandatory exemption that serves to protect the interests of third parties, I consider it appropriate to consider the applicability of section 37 to this record. This is in keeping with the de novo nature of a review by this Office.
One of the records at issue is a Case Study that was used in training for Forestry Inspectors on the application of the Appropriate Assessment procedures in 2012. In our request for submissions, we asked the Department to confirm whether the forestry application and other details contained in this Case Study relate to an actual person (and were not, for example, a sample or composite created for training purposes). No response was provided by the Department. It seems to me that it is likely to be a genuine application from an identifiable third party. If that is the case, I am satisfied that section 37(1) applies to this records and that none of the other provisions of section 37 serve to dis-apply that exemption, and that the record should not be released.
While the applicant indicated in his request that he was seeking access to certain records, he also posed a number of questions to which he was seeking responses. While the purpose of the Act is to enable members of the public to obtain access to information held by FOI bodies, the mechanism for doing so is by accessing records held by those bodies. In other words, a person wishing to obtain information from an FOI body must make a request for records that contain the information sought. Requests for information or for answers to questions, as opposed to requests for records, are not valid requests under the Act, except to the extent that a request for information or for an answer to a question can reasonably be inferred to be a request for a record containing the information or answer sought.
Nevertheless, it is apparent from the applicant’s correspondence with the Department that he was essentially seeking access to records which would explain how and why certain decisions were taken in the development of the appropriate assessment criteria, including the decision to extend the radius relating to appropriate assessments from 3km to 15km. As I have indicated above, the records identified by the Department during the course of the review contain no such information and lead me to question whether other relevant records might exist. However, as the applicant has seen none of the records identified, nor a schedule of relevant records, he is not in a position to consider whether the records identified address his request. Accordingly, I have not gone on to consider in this review whether the Department holds further relevant records. Instead, I suggest that the applicant should consider the contents of any records received as a result of this decision and if he considers that the Department might hold other relevant records, it is open to him to submit a fresh request for same to the Department.
Having carried out a review under section 22(2) of the FOI Act, I hereby vary the Department’s decision. I find that section 29(1) does not apply to any of the records. I find that section 37(1) applies to Record 11, comprising a Case Study that was used in training for Forestry Inspectors on the application of the Appropriate Assessment procedures in 2012. I therefore direct release of all the records listed in the schedule apart from the record comprising the Case Study.
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.