Case number: OIC-124286-P5F3K7

Whether the Department was justified in refusing access, under sections 29, 30 and 41 of the FOI Act, to a note of a meeting with the Inspector of Prisons regarding a report submitted by the Inspector to the Minister for Justice pursuant to Section 31(2) of the Prisons Act 2007

 
4 August 2022 
 
 

Background

In a request dated 22 February 2022, the applicant sought access to the minutes of, or any notes taken or memos arising from, a meeting between the Minister for Justice and the outgoing Inspector of Prisons during the week Monday 14 February to Friday 18 February 2022. In its decision dated 16 May 2022, the Department noted that the Inspector of Prisons had submitted a report into certain matters relating to the Dóchas centre at the meeting in question. It said that it is not proposed to publish this report at this time and in light of this,

release of the record of the meeting on the subject would not be appropriate at this time. It refused access to the record under sections 29(1) and 30(1) of the Act. The applicant sought an internal review of that decision, following which the Department affirmed its refusal of the request under sections 29 and 30. On 31 May 2022, the applicant applied to this Office for a review of the Department’s decision.

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 correspondence between the applicant and the Department as outlined above, and to communications between this Office and both the applicant and the Department on the matter. I have also had regard to the contents of the record at issue. I have decided to conclude this review by way of a formal, binding decision.

Scope of Review

During the review process, the Department made a further submission on the applicability of section 41 of the FOI Act. Accordingly, this review is concerned with whether the Department was justified, under sections 29(1), 30(1) and 41 of the Act, in refusing access to the record sought.

Preliminary Matters

I wish to note at the outset that under section 22(12)(b) of the Act, a decision to refuse a request is presumed not to have been justified unless the public body "shows to the satisfaction of the Commissioner that the decision was justified". Therefore, in this case, the onus is on the Department to satisfy this Office that its refusal of the request was justified.

Analysis and Findings

The record at issue comprises a note of a meeting between the Inspector of Prisons and the Minister for Justice and others concerning a report the Inspector of Prisons submitted to the Minister. The report was prepared pursuant to section 31(2) of the Prisons Act 2007 (the 2007 Act). Section 31(2) provides that;

“The Inspector may, and shall if so requested by the Minister, investigate any matter arising out of the management or operation of a prison and shall submit to the Minister a report on any such investigation”.

For the purposes of this decision, sections 31(3) and 31(4) of the 2007 Act are also relevant. They provide as follows;

“31(3) As soon as practicable after receiving the report, the Minister shall, subject to subsection (4), cause a copy of it to be laid before each House of the Oireachtas and to be published.

31(4) The Minister may omit any matter from any report so laid or published where he or she is of opinion—

a. that its disclosure may be prejudicial to the security of the prison or of the State, or

b. after consultation with the Secretary-General to the Government, that its disclosure–

i. would be contrary to the public interest, or

ii. may infringe the constitutional rights of any person.”

Section 29(1) – Deliberations of FOI Bodies
Section 29(1) provides for the discretionary refusal of a request if (a) 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 for the purpose of those processes, and (b) the body considers that the granting of 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. 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(1)(a) - Deliberative Process

The first requirement which must be met in order for section 29(1) to apply is that the record must contain matter relating to the ‘deliberative processes’ of an FOI body. An FOI body relying on this exemption should identify both the deliberative processes concerned and any matter in particular records which relates to these processes.

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 fact that a deliberative process exists and is ongoing does not mean that the exemption automatically applies without consideration of all the provisions of section 29. Equally, the fact that a deliberative process is at an end does not mean that the exemption automatically does not apply. Any arguments against release under section 29 of the Act should be substantiated and supported by the facts of the case. It is important that the FOI body shows 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.

In its submission to this Office, the Department said the record at issue is a note of the meeting with the Inspector of Prisons regarding the report submitted by the Inspector to the Minister for Justice pursuant to section 31(2) of the Prisons Act 2007. It said deliberations regarding the publication of the section 31(2) report and what information, if any, should be omitted from the published report as provided for under section 31(4), are ongoing and incorporates the consideration of legal advice. It said it is likely that a sizable part of the report will be deemed not suitable for publication. It said the record of the meeting regarding the report contains information regarding the contents of the report as well as the views of the Inspector of Prisons on the contents of the report (and other matters which are being considered by the Department), all of which will have to be taken into consideration before the deliberation process has been concluded. It said the note also contains reference to serious allegations which are outside the terms of reference of the report and that these matters are now the subject of a supplementary examination by the Inspector of Prisons. It said the question of how any supplementary findings or recommendations might be put into the public domain forms part of the ongoing deliberative process, which will not be concluded until both reports have been fully considered.

Having regard to the nature of the record at issue and the Department’s description of the process concerned, I accept that it relates to the deliberative processes of the Department. I therefore find that section 29(1)(a) applies. However, that is not the end of the matter, as I must go on to consider whether the release of the records would be contrary to the public interest.

Section 29(1)(b) - Public Interest

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, requiring the FOI body to show that the granting of the request would be contrary to the public interest. This Office has previously held 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 is not to say that such disclosure is always, as a matter of principle, against the public interest. I should say 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.

In its submission to this Office, the Department argued that release of the record would be contrary to the public interest as it would undermine the provisions allowed for in section 31(4) of the 2007 Act by releasing information into the public domain which the Minister may decide should be omitted from the report upon publication. It said the record contains deliberative recommendations and opinions, of which the release into the public domain would prevent the Minister from giving those recommendations due consideration and may undermine the Department’s deliberative processes. It said the note refers to allegations which fell outside the terms of reference of the report which will need to be investigated and given due consideration by the Department, and that release of information regarding these allegations prior to these processes taking place would undermine any actions the Department may see fit to undertake in response to same. It said release of the record may disadvantage the Department’s investigation and consideration of serious allegations referenced in the report.

I accept that the disclosure of a record that would undermine the provisions allowed for under section 31(4) of the 2007 Act would be contrary to the public interest. However, having examined the contents of the record at issue, it is not apparent to me how its disclosure could possibly cause such harm. While the Department contends that the record contains deliberative recommendations and opinions, it does not, in my view, contain any level of specificity or detail such that the disclosure of the record would involve the disclosure of information the Minister may wish to omit from the report prior to publication. For example, while the record describes the recommendations in the report in a very general way, it does not include any detail as to the precise nature of those recommendations.

Moreover, while the Department noted that the record refers to allegations which fell outside the terms of reference of the report which will need to be investigated and given due consideration by the Department, the record gives no indication of what those allegations are. I fail to see how the release of information detailing the fact that allegations were made, prior to the investigation of same, could possibly undermine any actions the Department may see fit to undertake in response to the allegations referenced. In the circumstances, I am satisfied that the release of the record at issue would be unlikely to lead to any of the harms identified by the Department.

Having regard to the provisions of section 22(12)(b) as described above, I find that the Department has not satisfactorily shown that the release of the record at issue would be contrary to the public interest. I find, therefore, that section 29(1) does not apply.

Section 30 – Functions and Negotiations of FOI Bodies

Section 30(1)(a)

Section 30(1)(a) of the Act provides for the refusal of a request if the FOI body considers that access to the record concerned could reasonably be expected to prejudice the effectiveness of tests, examinations, investigations, inquiries or audits conducted by or on behalf of an FOI body or the procedures or methods employed for the conduct thereof. Section 30(1) is also subject to a public interest balancing test as set out at section 30(2).

Section 30(1)(a) envisages two potential types of "prejudice" or harm. The decision maker must hold the view that the release of the record could reasonably be expected to prejudice the "effectiveness" of the tests, examinations, investigations, inquiries or audits, or prejudice the "procedures or methods employed for the conduct thereof”. Where an FOI body relies on this provision, it should identify the potential harm in relation to the relevant function specified in paragraph (a) that might arise from disclosure. Having identified that harm, it should consider the reasonableness of any expectation that the harm will occur. The FOI body should explain how and why, in its opinion, release of the record(s) could reasonably be expected to give rise to the harm envisaged. A claim for exemption under section 30(1)(a) must be made on its merits, in light of the contents of each particular record concerned and the relevant facts and circumstances of the case.

The Department’s arguments concerning the applicability of section 30(1)(a) are, in essence, the same as those arguments it made in relation to the applicability of section 29(1), namely that release would prejudice the procedure in place for considering what information, if any, might be omitted from the report prior to its release into the public domain. For the same reasons as I have set out above concerning the applicability of section 29(1), I find that the Department has not justified its refusal of the request under section 30(1)(a).

Significant Adverse Effect

Section 30(1)(b) 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 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). Where an FOI body relies on section 30(1)(b), it should identify the potential harm to the performance by the body of any of its functions relating to management that might arise from disclosure and having identified that harm, consider the reasonableness of any expectation that the harm will occur. When invoking section 30(1)(b), the FOI body must make an assessment of the degree of importance or significance attaching to the adverse effects claimed. Establishing “significant adverse effect” requires stronger evidence of damage than the “prejudice” standard of section 30(1)(a). Having identified the significant adverse effect envisaged, the FOI body should explain how release of the particular record(s) could reasonably be expected to result in this significant adverse effect.

It should also be noted that the test in section 30(1)(b) is not concerned with the question of probabilities or possibilities. Rather, it is concerned with whether or not the decision maker's expectation is reasonable. It is sufficient for an FOI body seeking to assert an exemption under section 30(1)(b) to show that it expects an outcome and that its expectations are justifiable in the sense that there are adequate grounds for the expectations, and the body is not required to demonstrate that such an outcome will definitely occur. This being said, the FOI body should show how release of the record could reasonably be expected to cause the harm envisaged, i.e. it should show the link between granting access to the record concerned and the harm identified. It should do this by reference to the specific record being considered for release: what is it about the particular record or the particular information in the record which, if released, could reasonably be expected to cause the harm envisaged? An FOI body’s arguments in this regard should be sufficiently detailed to demonstrate that link, and 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.

In its submission, the Department argued that the ability of the Minister and the Department to take any action required following receipt of the report would be undermined. It argued that release of the record will have a significant adverse effect on the Department’s management functions by releasing information relating to those functions prior to the Department having sufficient time to give them due consideration. It said the report in question is directly related to the management of performance of the prison service and the Inspector’s functions.

Given my findings that the record at issue does not contain any level of specificity or detail such as might be contained in the report itself, it is not clear to me how the release of the record could reasonably be expected to result in the significant, adverse effects envisaged by the Department. Rather, the Department appears to have made a general assertion that the outcomes it has forecast will come to pass, without linking its predictions to the specific content of the record, or demonstrating how its content could reasonably be expected to result in the adverse outcomes anticipated. I find, therefore, that the Department has not justified its refusal of the records at issue under section 30(1)(b).

Section 41 - Enactments relating to non-disclosure of records

Section 41(1)(a) of the FOI Act provides that a head shall refuse to grant an FOI request if the disclosure of the record is prohibited by law of the European Union or by an enactment which is not listed in Schedule 3 to the FOI Act. In essence, the non-disclosure provision overrides any right of access under FOI, unless that particular provision is specified in Schedule 3. I take the view that in order for section 41(1)(a) to apply, a provision must exist that explicitly prohibits the release of the records, that is clear in its meaning and effect, and that can be interpreted only as prohibiting disclosure of the information in question. I am also of the view that the objective of section 41(1) - subject to the exceptions specified in Schedule 3 - is to protect the actual information, whether it is held by the body specified in the original enactment or by some other FOI body.

Section 41(1)(b) of the FOI Act applies where non-disclosure is authorised (as distinct from disclosure being prohibited). It applies where the non-disclosure is authorised by an enactment (other than a provision specified in column (3) of Part 1 or 2 of Schedule 3 of an enactment specified in that Schedule) in certain circumstances and the case is one in which the FOI body would refuse to disclose the record under that enactment. Section 41(1)(b) requires that non-disclosure is authorised; an absence of an obligation to release is not sufficient.

In its submission on the applicability of section 41 of the FOI Act, the Department cited section 31(4) of the 2007 Act. It argued that section 31(4) allows for the non-disclosure of information in section 31(2) reports where release of the information may be prejudicial to the security of a prison or the State, or where its disclosure would be contrary to the public interest or may infringe the constitutional rights of any person. It argued that the record in question contains information found within the section 31(2) report, which may yet be omitted upon publication.

As I have outlined above, section 31(4) of the 2007 Act entitles the Minister to omit, in certain circumstances, any matter from any section 31(2) report prior to publication. However, it seems to me that the section does not allow for the non-disclosure of a record, other than a section 31(2) report, on the basis that release would undermine the Minister’s authority to determine what information, if any, should be omitted from the report.  I fully accept that if the Department was required to release information contained in such a report prior to the Minister having had the opportunity to consider what information, if any, should be omitted from the report prior to publication, the Minister’s powers under section 31(4) of the 2007 Act would, indeed, be undermined. However, in my view, this does not mean that section 31(4) serves to prohibit the release of such information that may be contained in records other than the section 31(2) report. Any such concerns would be more properly addressed through other relevant exemptions in the FOI Act. In any event, as I have outlined above, I am not satisfied that disclosure of the record at issue would involve the disclosure of information that might be contained in the section 31(2) report in question that the Minister may wish to omit from the published report. In the circumstances, I am not satisfied that section 41(1)(a) or (b) applies to the record.

Decision

Having carried out a review under section 22(2) of the FOI Act, I hereby annul the Department’s decision to refuse access, under sections 29(1), 30(1) and 41 of the FOI Act, to a record of a meeting between the Inspector of Prisons and the Minister for Justice and others concerning a report the Inspector of Prisons submitted to the Minister, and I direct the release of the record in full.

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 not later than four weeks after notice of the decision was given to the person bringing the appeal.

Stephen Rafferty
Senior Investigator