Case number: 180222
30 November 2018
On 16 April 2018 the applicant sought access to a number of records mentioned in the minutes of a meeting of the Governing Body, namely a DKIT strategic planning presentation, an erratum and covering email from DKIT to the Office of the Comptroller and Auditor General (C&AG), and the C&AG's response to DKIT's signed 2015/16 financial statements submitted on 22 December 2017.
In its decision of 16 May, DKIT refused access to all three records under section 29 of the FOI Act, which is concerned with protecting the deliberations of public bodies. The applicant sought an internal review of that decision, following which DKIT affirmed its original decision to refuse the request. On 8 June 2018 the applicant sought a review by this Office of DKIT's decision.
During the course of this review, the applicant stated in an email of 7 August 2018 that she was withdrawing her appeal in respect of the erratum as its contents are already available to her. In a submission to this Office DKIT argued that the presentation was also exempt under section 36(1)(b) and that the correspondence from the C&AG was exempt under section 42(g). The applicant was invited to make a further submission in respect of the additional grounds cited for refusing access to the records in question and she did so on 8 August 2018.
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 DKIT's correspondence with the applicant as outlined above and to communications between this Office and both DKIT and the applicant on the matter. I have also had regard to the contents of the records at issue and to the contents of DKIT's Strategic Plan 2017-2019 which is publicly available on its website.
This review is concerned solely with whether DKIT was justified in its refusal to grant access to the strategic planning presentation under sections 29(1) and 36(1)(b) and to the correspondence from the C&AG under sections 29(1) and 42(g) of the FOI Act.
Section 22(12)(b) of the FOI Act provides that a decision to refuse to grant 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". This means that the onus is on DKIT to satisfy the Commissioner that its decision to refuse access to the records sought was justified.
DKIT refused access to this record under sections 29(1) and 36(1)(b).
Section 29(1) of the FOI Act provides for the refusal of a request (a) if the record concerned contains matter relating to the deliberative processes of an FOI body and (b) the body considers that 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. Section 29(1) also specifically requires consideration of whether the grant of a request 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.
In its submission to this Office, DKIT stated that the presentation contains information relating to the deliberative processes of its Executive Board and Governing Body who are in the very early stages of planning and development of its next strategic plan which will be critical to the success and growth of the Institute going forward.
During the course of the review, Mr O'Gorman of this Office noted that in a press release issued on 14 September 2018, the DKIT President stated that DKIT had launched its Ambition strategy and he sought clarification on the matter. In response, DKIT stated that the President had been referring to the launch of the strategy’s development rather than the strategy itself, and that there is no dedicated timeline for the publication of the strategy.
DKIT argued that release of the record would be contrary to the public interest as it would potentially advise its competition of its initial decision making and thus cost it its "competitive edge", at a time when it is attempting to increase its student intake in an ever increasingly competitive market. It argued that the release of the record would assist its competitors by advising them of its initial thoughts on what its future development might be and how it is going to address the issues that lie ahead of all third level educational organisations but especially those that straddle the border region.
DKIT further argued that it would be contrary to the public interest to release the record at this stage as it is part of a process of internal evaluation that had yet to go through many phases of communication, consultation and change.
The applicant argued that given DKIT's mission is to enhance and develop learning, knowledge and research, the public interest must favour the release of plans to improve DKIT. She argued that there was no good reason to refuse access to the presentation on the basis that DKIT's other plans around capital expenditure and other areas are in the public domain.
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 (which require that, on balance, the public interest would be better served by granting than by refusing to grant the request). The public interest test in section 29(1)(b) requires the public body to show that the granting of the request would be contrary to the public interest.
The Act clearly envisages that there will be cases in which disclosure of the details of a public 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. Any arguments against release under section 29 of the Act should be substantiated and supported by the facts of the case. Having regard to the provisions of section 22(12)(b) as outlined above, it is important that the body shows to the satisfaction of the Commissioner how granting access to the particular records would be contrary to the public interest, e.g. by identifying a specific harm to the public interest flowing from release.
I have examined the contents of the record at issue. It comprises a power point presentation which is described as a "Planning Framework Presentation" to the Governing Body. It contains, in essence, a high level overview of DKIT's potential future strategic direction, including possible options and issues arising. DKIT did not point to any specific information in the record that might assist its competitors and therefore affect its competitive edge. It seems to me that at least some parts of the potential future direction are already reflected either in the strategic goals set out in its Strategic Plan for 2017-2019, or in the press release issued in September 2018.
In my view, DKIT has not satisfactorily shown how release of the record at issue might harm its competitive position. Neither has it explained why it would be contrary to the public interest to release of the record simply because it is part of a process of internal evaluation that had yet to go through many phases of communication, consultation and change. In the circumstances, and having regard to the provisions of section 22(120(b), I find that DKIT has not justified its decision to refuse access to the record under section 29(1).
In its submission to this Office DKIT also sought to rely on section 36(1)(b) of the FOI Act to refuse access to the presentation. Section 36(1)(b) provides for the refusal of a request if the record concerned contains financial, commercial, scientific or technical or other information whose disclosure could reasonably be expected to result in a material financial loss or gain to the person to whom the information relates, or could prejudice the competitive position of that person in the conduct of his or her profession or business or otherwise in his or her occupation.
DKIT's arguments for refusing access to the record under section 36(1)(b) are identical to those made in respect of section 29(1)(b), namely that release would affect its competitive position. As I have outlined above, DKIT did not point to any specific information in the record that might assist its competitors and therefore affect its competitive edge, nor is it clear to me how such harm might arise. In the circumstances, I find that section 36(1)(b) does not apply.
Correspondence from the C&AG
DKIT initially refused this record under section 29 of the FOI Act, on the basis that it concerned a deliberative process pertaining to the presentation and finalisation of its financial accounts for the period 2015/2016. However, in its submission to this Office it also cited section 42(g) of the FOI Act, and provided a copy of a submission from the Office of the C&AG to the same effect. As section 42 restricts the operation of the FOI Act, I will consider that section first.
Section 42(g) provides that the FOI Act does not apply to a record relating to an audit, inspection or examination carried out by the C&AG under the Comptroller and Auditor General Acts, 1923 and 1993, the Exchequer and Audit Department Acts, 1866 and 1921, or any other enactment, other than:
i) such a record that was created before the commencement of the investigation or examination aforesaid, or
ii) a record relating to the general administration of the Office of the C&AG
The record at issue concerns a letter to the President of DKIT from the C&AG dated 25 January 2018 concerning an audit the C&AG was undertaking of DKIT's financial statements for year ended 31 August 2016.
In her submission to this Office on DKIT's reliance on this exemption, the applicant argued that section 42(g) could not apply as the record was created before the audit of DKIT began. She contended that while the correspondence was dated 25 January 2018, DKIT did not submit its accounts to the C&AG until 17 April 2018, which, the applicant argued, meant the audit could not have begun until after that date.
However, having examined the record, it is clear to me that it concerns an audit that was already ongoing. Indeed, the correspondence refers to issues that the audit identified. I am satisfied that the record relates to an audit carried out by the C&AG and I find, therefore, that section 42(g) applies to this record.
In the circumstances there is no need for me to consider DKIT's application of section 29 to the record.
Having carried out a review under section 22(2) of the Freedom of Information Act 2014, I hereby vary the decision of DKIT. While I affirm the decision of DKIT to refuse access to the C&AG correspondence under section 42(g), I find that it was not justified in refusing access to the presentation and I direct its release.
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 applicant 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.