Case number: 170520
10 May 2018
On 23 February 2017, the applicant sought access to 'details of all applications being considered ... for foreshore licences/aquaculture licenses within an area of 1 mile radius of the area the subject of Foreshore Licence 706, and in particular in the Bay area located between Rossbeigh beach and Dooks beach including the estuaries of the rivers Behy and Caragh'. As part of this request the applicant also sought records relating to Foreshore Licence 706. This aspect of the applicant's request was addressed at the original decision and interim review stage and does not form part of the current review.
On 11 May 2017, the Department refused access to the relevant foreshore/aquaculture applications under section 29(1) of the FOI Act which serves to protect records relating to the deliberative processes of FOI bodies. The applicant sought an internal review of that decision and on 21 June 2017 the Department affirmed its original decision. The Department's internal reviewer also cited sections 30 (which serves to protect the functions and negotiations of FOI bodies), 36 (which protects commercially sensitive information) and 37 (which protects personal information) as additional grounds for refusing the request. On 2 November the applicant sought a review by this Office of the Department's decision.
The Department identified twelve applications, lodged between 2014 and 2017, as coming within the scope of the applicant's request. In one case, while an application had been submitted, the request for a licence has subsequently been withdrawn. Each application is submitted on a standard application form and is composed of a number of parts. In Parts 1 and 2 of the form applicants provide details of the type of aquaculture proposed and the geographic area within which they are seeking to operate. Applicants also provide details of the level of employment their proposed project would create (Part 2.6). Part 3 of the application form contains details in relation to the applicants themselves and Part 4 contains details regarding the proposed financial costs of production. Finally Part 5 of the application form is a check-list for applicants prompting them to include additional documentation which can include detailed maps of the proposed aquaculture site, drawings of the proposed layout of the production site etc.
These applications form the basis of the Department's aquaculture licence determinations under the Fisheries (Amendment) Act 1997 and foreshore licence determinations under the Foreshore Act 1933. In line with the relevant legislation the process of licensing by the Department involves a series of consultations with a range of scientific and technical advisers as well as various statutory bodies prior to approval by the Minister for Agriculture, Food and the Marine. As part of this process a period of public consultation takes place which involves the making available of Parts 1 and 2 (with the exception of part 2.6) of the applications for aquaculture/foreshore licences to members of the public. The period of public consultation is open for four weeks and members of the public are entitled to submit observations to the Department prior to decisions being taken to grant the relevant licences.
In relation to the consideration of the majority of applications for the geographic area specified in the applicant's request, the period of public consultation has not yet taken place and the Department has provisionally indicated that it is likely to take place in Autumn 2018. However for one application, T06/473A, following a determination within the Department that the area for which the licence was sought had previously been licensed, the matter has been progressed to the point where the public consultation phase has recently been completed. As such the relevant parts of this application form have already been made publically available on the Department's website.
As part of the review by this Office the twelve individuals or companies who have submitted applications for aquaculture/foreshore licences within the area covered by the applicant's request were consulted. Responses were received from ten individuals/companies and in all cases these third parties objected to release of the records under FOI. A number of the submissions made specific reference to the fact that the records contain personal and commercially sensitive information.
I have decided to bring this review to a close by way of a formal binding decision. In conducting the review I have had regard to the Department's correspondence with the applicant, to the communications between this Office and both the applicant and the Department on the matter and the submissions received from third parties. I have also had regard to the contents of the record at issue.
This review is solely concerned with whether the Department was justified in refusing to grant access to the relevant foreshore/aquaculture applications being considered.
As I consider section 29 to be the most relevant I propose to deal with that exemption first.
Section 29(1) of the FOI Act provides that an FOI body may refuse to grant a request if the record contains matter relating to the deliberative processes of an FOI body and granting 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. It is therefore important for public bodies to satisfy this Office that both requirements are met.
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 process(es) concerned and any matter in particular records which relates to these processes. Secondly the public interest test contained in section 29(1)(b) requires the FOI body to be of the opinion that releasing the records at issue would be contrary to, or against, the public interest. Generally speaking, this requires a body to identify a specific harm to the public interest flowing from release. A mere assertion without supporting evidence is not sufficient to satisfy the requirement that granting access to the record would be contrary to the public interest.
The Department has indicated that section 29(1) applies in this case to protect the statutory decision making processes set out in the Fisheries (Amendment) Act 1997, the Foreshore Act 1933 and applicable EU legislation. It contends that the processing of these applications to a point where the Minister makes a decision on whether to grant or refuse an application is a deliberative process and the premature release of information could negatively affect this process. The Department has argued that the envisaged period of public consultation will be the appropriate opportunity for the applicant and others to view and comment on the various applications for licences and a unilateral departure from this procedure would undermine the integrity of the Department's licensing system.
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 records at issue in this case consist of the applications for foreshore/aquaculture licences which have been submitted since 2014 in the geographic area covered by the applicant's request. In each case the submission of an application for licence marks the start of a 16-step process which will be undertaken by the Department in reaching a determination as to whether or not to grant the requested licences. In line with the Fisheries (Amendment) Act 1997 and the Foreshore Act 1933 and Regulations made thereunder, this process will involve consultation with a range of scientific and technical advisers and various statutory consultees. In addition the preparation of Environmental Impact Assessments and Appropriate Assessments (AAs) are also required in applications of this nature. A period of public consultation is also envisaged. It is only following the completion of this lengthy process that a Ministerial decision is taken to grant or refuse the application in each case. It is clear from the relevant legislation that the Minister maintains a discretion as to whether or not to approve each application for a foreshore/aquaculture licence based on an analysis of each specific case.
Having carefully examined the matter, I am satisfied that the process of considering the applications in question can reasonably be described as a deliberative process for the purposes of the FOI Act. I find, therefore, that the records relate to the deliberative processes of the Department. However, this is not the end of the matter as for the exemption to apply, the body must show that release of the records would be contrary to the public interest.
The Public Interest
The Department argued the granting of the applicant's request would be contrary to the public interest as it would undermine the deliberative process and could create the public perception that the decision-making process would be unduly influenced. While accepting that there is a public interest in openness and transparency around the grant of licences in this area, the Department argued that its statutory function to licence and regulate aquaculture activities and to manage sea-fishery activity on the foreshore would be compromised if information was released prior to the statutory period of public consultation.
In addition the Department argued that were the application forms to be released to the applicant under FOI prior to the envisaged period of public consultation then the applicant would be at an unfair advantage vis-à -vis other members of the public in that he would have access to the aquaculture/foreshore licence application forms prior to the statutory consultation period. The Department argued that it could be open to allegations of abuse of process by failing to comply with the timeframes set out in the applicable legislation. Finally the Department argued that the integrity of the State's regulatory regime in respect of food production from the marine environment could be compromised if the relevant records were released.
In his submissions to this Office the applicant raised concerns about some aspects of the statutory process to grant or refuse the requests for foreshore/aquaculture licences. He argued that the current period of public consultation of four weeks is too short to allow members of the public to make meaningful submissions and that he therefore sought access to the applications under the FOI Act to allow for greater public awareness and participation at an earlier stage in the process. He also argued that the Department erroneously relied on the provisions of section 29(1) to refuse him access to the relevant records and instead he submitted that the release of these records would not in any way interfere with the decision-making process in relation to them.
The applicant further submitted that there is a clear public interest in openness and transparency around the decision to award aquaculture licences in the area encompassed by his request. In particular he argued that decisions around commercial activity on the State's foreshore is clearly a matter of public interest and as such every effort should be made to ensure that information in relation to this matter is made available. The applicant also suggested that, in line with the provisions of section 18(1) of the FOI Act, the Department should consider releasing some parts of the relevant records to him.
Having carefully considered the matter I accept the Department's argument that release of the relevant records at this point in time would undermine the statutory process set out for processing applications for foreshore/aquaculture licences. I am satisfied that decisions in relation to the use of parts of the State's foreshore for aquaculture activity are taken in a complex and contested environment with the balancing of competing interests required in order to determine whether or not to grant a licence. I also satisfied that it is in the public interest that these decisions are taken in a manner which accords with the statutory process set out in the applicable legislation. If the relevant records were to be released to the applicant, the current sequence whereby the period public consultation only takes place following the completion of Appropriate Assessments and Environmental Impact Assessments would be substantially altered. I am therefore satisfied that in order to protect the integrity of the statutory process it is not in the public interest to release the relevant records at this point in time. I am equally satisfied that there is a strong public interest in ensuring that this process is not compromised by the release of records that could give one party an unfair advantage over other stakeholders, or could inhibit the full and frank consideration of all relevant issues by the Department. I should also add that it is not a matter for this Office to consider the appropriateness of the statutory process.
In conclusion I am satisfied that the release of the relevant records at this point in time risks impairing the statutory process currently underway to assess and determine such applications and that this is contrary to the public interest. I therefore find the provisions of section 29(1) apply. In reaching this decision I am particularly influenced by the fact that, in line with the ordinary handling of these applications, it is intended that the majority of these records will be made publically available in the near future as part of the period of public consultation.
Section 29(2)(b) provides that section 29(1) does not apply to factual information. The applications at issue contain, in essence, proposal type information relating to the proposed aquaculture/foreshore projects. As such, I am satisfied that very little of the information contained in the records can properly be described as factual information. There is a small amount of information relating to the applicants that can reasonably be describes as factual, including names, addresses, PPS numbers, bank account numbers etc.
Section 18(1) of the Act provides, that "if it is practicable to do so", access to an otherwise exempt record shall be granted by preparing a copy, in such form as the head of the public body concerned considers appropriate, of the record with the exempt information removed. Section 18(1) does not apply, however, if the copy provided for thereby would be misleading (section 18(2) refers). This Office takes the view that the provisions of section 18 do not envisage or require the extracting of particular sentences or occasional paragraphs from records for the purpose of granting access to those particular sentences or paragraphs. Generally speaking, therefore, this Office is not in favour of the cutting or "dissecting" of records to such an extent. Being "practicable" necessarily means taking a reasonable and proportionate approach in determining whether to grant access to parts of records.
Given the nature of the records at issue, it seems to me that the release of small parts of the records would give no sense of the overall thrust and/or purpose of the records and that the release of parts of the records in this fashion would be misleading. As such, I find that section 18(1) does not require the release of redacted records in this case. In any event, it seems to me that even if I considered an exercise of considering factual information for release to be appropriate, much, if not all, of the factual information would fall to be protected under section 37(1) on the ground that its release would disclose personal information relating to parties other than the requester.
In summary, therefore, I find that the Department was justified in refusing access to the applications sought.
Having carried out a review under section 22(2) of the Freedom of Information Act 2014, I hereby affirm the decision of the Department of Agriculture, Food and the Marine. I find it was justified in refusing access to the records at issue under sections 29(1) and 37(1) of the FOI Act.
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.