Whether the Department was justified in refusing access to records concerning shellfish licences in Valentia Harbour
30 September 2021
In a request dated 11 December 2020, the applicant sought access to all records concerning shellfish licences in Valentia Harbour, including but not limited to a number of specified applications. He said that any records relating to observations from the public and any information currently published on the Department’s website can be excluded. In a decision dated 13 January 2021, the Department refused the request under sections 29(1) (deliberative processes) and 31(1)(a) (legal professional privilege). The applicant sought an internal review on 5 February 2021. The Department’s internal review decision of 18 February 2021 affirmed its decision on the request. On 11 May 2021, 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 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, the Department and the applicant, the content of the records at issue and the provisions of the FOI Act.
Scope of the Review
The scope of this review is confined to whether the Department’s refusal of the applicant’s request was justified under the FOI Act. The records identified by the Department as covered by the request are set out in the schedules to its decisions.
It should be noted that this review does not extend to any other matter, including the merits of the process by which the Department processes shellfish licence applications.
Section 29 – deliberative process
Section 29 is a discretionary exemption, which provides that an FOI request may be refused 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), and (b) the granting of the request would, in the opinion of the head of the FOI body, 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. 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.
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.
Generally speaking, it would be contrary to the public interest to release a record where a specific harm to the public interest flows from release. While there is nothing in the section 29 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 FOI body proposes to make.
The applicant observes that section 29(1) is not a mandatory exemption. It is a matter for the Department to determine if it wishes to apply a discretionary exemption. The role of this Office is confined to determining whether the Department’s decision to refuse the request on the basis of the exemption cited was justified.
The applicant does not appear to dispute that the requested records relate to a deliberative process but I will consider this for completeness.
The Department says that the records at issue are subject to a statutory decision-making process, further to which the Minister decides whether the Aquaculture/Foreshore licences should be granted. It says that it considers all licence applications under the provisions of the 1997 Fisheries (Amendment) Act, the 1933 Foreshore Act and relevant National and EU legislation, including the Aquaculture (Licence Application) Regulations, 1998 (the Regulations). I note that the Regulations set out the process by which applications shall be made and considered. In summary, the Regulations provide for the making and consideration of submissions by scientific and technical advisors, the general public and other parties, and for the provision of submissions to the applicants whom in turn have right to comment. The Regulations also give the Minister discretion to seek further submissions from persons who made submissions and from applicants and also to invite revised proposals, plans, drawings or particulars before making a decision on the application.
In the case at hand, I understand that following the completion of an updated assessment for the purpose of environmental compliance with the EU Habitats and/or Birds Directives, the applications specified in the applicant’s request were advertised for public consultation in October 2020. Because of the impact of Covid restrictions at that time, it was decided to re-run the public consultation process in April/May 2021. The Department says that the consultation phase has now closed. It says that valid submissions received as part of both consultation periods will be considered as part of the licensing process, with a final determination likely to be made by the end of 2021.
I accept that the processes by which shellfish licence applications are considered are deliberative in nature. I find that the first requirement of section 29(1), as set out at section 29(1)(a) of the FOI Act, has been met in this case.
Submissions of the parties
The Department says that there is a public interest in the use or proposed use of State foreshore, in the sustainable development of aquaculture (in which regard it refers to the National Strategic Plan for Sustainable Aquaculture Development), in making the aquaculture licensing process as open and transparent as possible and ensuring the right to due process. It says that the arrangements in place for public consultation, in line with the statutory requirements, and the making available of various documents on its website serve to promote transparency and accountability regarding how it administers the aquaculture licensing process, while also ensuring the right to due process for the applicants concerned.
However, the Department’s position is that, while the disclosure of the records would further public debate, this could be unhelpful to the ongoing deliberative process to which the records relate and significantly undermine the ongoing analysis of the issues involved. It says that the records at issue do not represent a full view of the issues and factors under consideration. It says that their release at this point in time could prejudice its attempts to conclude the aquaculture licensing process in a timely and efficient manner by causing difficulty in its relationship with applicants.
This Office’s Investigator also referred the applicant to this Office’s decision in Case No 170520. That case involved a request for foreshore/aquaculture licence applications being considered for a particular area, which at the time of the OIC decision had yet to undergo public consultation. The Investigator noted a further possible argument of relevance to this decision i.e. that releasing the records at this point in time would undermine the integrity of the statutory process for considering licence applications, as set out in the Regulations.
The applicant argues that no specific harm to the public interest has been identified by the original decision maker, and that the Department has provided no evidence to this Office to support its position regarding the harms it envisages as arising from release of the records. He says that some of the Department’s arguments are contradictory.
The applicant also says that 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. He says that granting the request would serve this public interest, which he says is entitled to significant weight in the circumstances, by disclosing the outcome of the Department’s various consultations and enabling insight into the potential effects of a large scale development in a Special Area of Conservation (SAC).
The applicant says that there is no evidence to support the Department’s claim that there is a strong public interest in making the aquaculture licensing process as open and transparent as is feasible. He describes various failings he saw in the initial consultation process, which he says was accepted by the Department such that it carried out a further consultation. He says that the consultation processes indicate that the Department has little obligation for its obligation to share information with the public.
The applicant says that there is a public interest in using the foreshore for recreation and that industrialising the foreshore, which is an SAC in a major tourist area, will have a negative impact on this industry. He asks whether the Department has consulted local tourist interests to determine the level of damage to their business. He says that the records will enable the public to assess what may be licensed in their area, some of whom could be seriously adversely affected by the development. He says that the Department is intentionally preventing a public debate by withholding records concerning a large scale development in an ecologically sensitive area and that this is contrary to the intent of section 29 and a misuse of the Act. He says that if the process was subject to normal planning rules, all of the records would be published. He says that he made his request in order to make informed observations in relation to the applications. He says he felt that he needed the records on which the Department will base its decision and that the Department cannot expect members of the public to give detailed comments if it will not release all of the records. He says that release of the information at this point will not slow down the process because the period for public consultation is now over. He notes that the Department has had one of the applications since 2016. The applicant says that, unlike Case No 170520, there is no competitive process for the applications the subject of his request, but rather that they are single applications for each of the plots outlined in each application.
Finally, the applicant also notes that 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 FOI body proposes to make. He says that this does not apply in this circumstance as the public is already aware that the department will make a significant decision.
I will deal firstly with the arguments regarding whether the requester would, by the release of the records, become aware of a significant decision that the Department proposes to make. The relevant issue is not whether a prospective decision is significant, but whether release of the record will make the applicant aware of the nature of such a proposed decision. While the Department is of the view that release of the records could allow the applicant to pre-determine what the decision of the Minister may be in relation to the applications, it is not clear to me, nor has it been explained by the Department, how such an outcome could arise. Elsewhere in its submission it says that the records at issue do not represent a full view of the issues and factors under consideration, which I accept is the case. In short, I have no reason to consider that granting the request would be contrary to the public interest because the requester would become aware of a significant decision that the Department proposes to make.
I have considered all of the applicant’s submissions in relation to the public interest in releasing the records, as set out above. The public interest test in section 29(1)(b) requires the FOI body to show that the granting of the request would be contrary to the public interest. This is a different test to other parts of the FOI Act, which require that, on balance, the public interest would be better served by granting than by refusing to grant the request. I have therefore concentrated my analysis here on whether or not I believe it would be contrary to the public interest to release the records at issue.
While there is nothing in the section 29 exemption itself which requires the deliberative process to be ongoing, the question of whether it is ongoing or not may be relevant to the issue of the public interest. This is not to say it automatically follows that it is contrary to the public interest to release some or all records relating to an ongoing deliberative process. Neither does it follow that it is contrary to the public interest to release records that comprise an incomplete view of the factors and issues under consideration. Each case must be determined on its own merits.
It seems to me that release of the records would give an insight (up to the date of receipt of the request) into the Department’s performance of its functions in relation to the licensing process, which as noted affects an SAC. I recognise that such insight has been provided to some extent by the publication of various materials on the Department’s website. Firstly, it must be presumed that the details required to be made available to the public and others via the statutory process are sufficient to enable those parties to provide views on the matter. In any event, I accept that additional insight into the relevant issues would be gained through disclosure of the records at issue.
However, the Department is of the view that release of the records at this point in time could prejudice its ability to conclude the licensing process in a timely and efficient manner. Generally speaking, it is in the public interest to ensure that appropriate decisions are made by FOI bodies. I accept that the Department must have appropriate time and space to engage in deliberative processes that enable proper consideration of all relevant issues in order to achieve such an outcome. It seems to me that, in general, undue or unreasonable interference with those processes would be contrary to the public interest.
I note, in particular, that the entire process for deciding on the applications the subject of the request is set out in legislation. While the public consultation part of this process may have concluded, as described above the statutory process also gives applicants the right to comment on submissions received and provides for the seeking of further information from various parties by the Minister. It seems to me that release of the records at this point in time would undermine the integrity of the remainder of this statutory process. In this respect, it should be borne in mind that release of records under FOI is accepted to be effectively the same as publishing them to the world at large. I should also say that the decision in Case No 170520 did not centre on whether the process for awarding the relevant licences was competitive in nature. Rather, it took account of the impact of release of the records concerned on the statutory process for consideration of the applications to which they related.
I find that the second requirement of section 29(1), as set out at section 29(1)(b) of the FOI Act, has also been met in this case. At this time, I find that the Department is justified in withholding the records under section 29(1) of the FOI Act.
Although not relevant to my analysis or findings, I note the Department’s explanation that it was not possible to process the applications until an updated assessment for the purpose of environmental compliance with the EU Habitats and/or Birds Directives had been completed. I should also say that I do not agree with the applicant’s view that the Department is intentionally preventing a public debate by withholding the records or that this amounts to a misuse of the FOI Act.
Section 29(2) - The Exceptions to Section 29(1)
Section 29(2) provides that the exemption does not apply if and in so far as the record 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. I am satisfied that none of the exceptions in section 29(2) arise in this case.
Insofar as section 29(2)(b) in particular is concerned, I accept the Department’s position that the release of factual information as contained in the records would be contrary to the provisions of section 18 of the FOI Act. Section 18(1) of the FOI Act provides for the release of non-exempt material from an otherwise exempt record “if it is practicable to do so”. However, section 18(2) provides that section 18(1) does not apply if the resulting copy would be misleading. I am of the view that it would not be practicable to attempt to extract any factual information from the records while at the same time ensuring that the redacted copies is not misleading under section 18 of the Act. Furthermore, it is relevant that the factual information is in many instances inextricably linked to other types of information such as proposals, opinions, etc.
Section 31(1)(a) – legal professional privilege
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 (LPP). It does not require the consideration of the public interest. LPP enables the client to maintain the confidentiality of two types of communication:
• confidential communications made between the client and a professional legal adviser for the purpose of obtaining and/or giving legal advice (advice privilege), and
• confidential communications made between the client and a professional legal adviser or the professional legal adviser and a third party or between the client and a third party, the dominant purpose of which is the preparation for contemplated/pending litigation (litigation privilege).
The Commissioner accepts that, provided the ingredients of advice privilege or litigation privilege are present in any given case, the fact that the professional legal adviser concerned is employed as an in-house legal adviser does not prevent the client from being able to assert the privilege over the communications at issue.
In particular, 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. Privilege may, in certain circumstances, also apply to communications between non-legal advisory staff which detail legal advice sought or received or are part of a continuum of communications arising from an initial request for legal advice. The concept of "once privileged always privileged" applies to advice privilege, and thus, unless otherwise lost or waived, lasts indefinitely.
The Department has claimed LPP over one record, which is comprised of an email thread, which it says concerns highly confidential legal advice received from its Legal Services Division. Having examined the contents of the email thread, I am satisfied that its contents comprise confidential communications between the Department and its professional legal advisors for the purpose of seeking and/or providing legal advice. I have no reason to consider that the Department has waived privilege over the contents of the record. I am satisfied that it attracts LPP and I find that it is exempt under section 31(1)(a) of the FOI Act.
The applicant says that the public interest on a development of this size takes precedence over legal privilege, and that the record should be released to give full information on this development. As noted already, however, the public interest is not required to be considered in respect of a record that attracts LPP.
Having carried out a review under section 22(2) of the FOI Act, I hereby affirm the Department’s refusal of the request under sections 29(1) and 31(1)(a) of the FOI Act.
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.