This case was appealed to the High Court in July 2019.
Whether the Department was justified in refusing access to fire safety reports in relation to certain schools under sections 29, 31, 32, 36 or 42 of the FOI Act
6 June 2019
On 22 October 2018, the applicant made an FOI request to the Department for copies of:
1. All reports produced as a result of fire safety assessments carried out on 31 schools built by (a named) construction company as announced by the Minister for Education in September 2017;
2. The reports of the additional 25 schools chosen for similar assessments;
3. All reports of remediation work carried out as a result of the assessments.
On 19 November 2018, the Department refused access to the requested records on the basis that they are exempt under sections 29 and 31 of the FOI Act. The applicant requested an internal review of this decision. On 14 December 2018, the Department affirmed its original decision. It also relied on section 32 of the Act in refusing access to the records. On 7 January 2019, the applicant applied to this Office for a review of the Department’s decision.
During the course of the review, the Department made submissions to this Office in which it also sought to rely on sections 36 and 42(f) of the Act in support of its decision to refuse access to the records. This Office informed the applicant of the Department’s reliance on additional exemption provisions. This Office also provided the named construction company with an opportunity to make submissions.
I have decided to conclude this review by way of a formal binding decision. In conducting this review, I have had regard to the contents of the records, to the submissions of the parties, and to the provisions of the FOI Act 2014.
Scope of Review
During the course of review, the applicant agreed to limit the scope of the review to the first part of her request and confirmed that she was not seeking access to the names of individuals contained in the records. I have also excluded records numbered seven, nine and ten from the scope of my review as they are not reports on the schools identified in the request but on different premises. The scope of this review is confined to whether the Department was justified in refusing access to all reports produced as a result of fire safety assessments carried out on 31 schools built by a named construction company on the basis that the reports are exempt from release under sections 29(1)(a), 31(1)(a)/(b), 32(1)(a)(i)/(iii)/(iv), 36(1)(b)/(c) or 42(f) of the FOI Act.
Section 13(4) of the FOI Act provides that the actual or perceived reasons for a request must generally be disregarded by the decision maker, including the Information Commissioner, (except insofar as such reasons are relevant to consideration of the public interest or other provisions of the Act).
Although I am obliged to give reasons for my decision, section 25(3) requires all reasonable precautions to be taken in the course of a review to prevent disclosure of information contained in an exempt record. This means that the description which I can give of the records at issue and the material that I can refer to in the analysis is limited.
Analysis and Findings
Section 29 – Deliberations of Public Bodies
The Department argues that the records are exempt under section 29(1) of the Act. Section 29(1) provides that a head may refuse to grant an FOI request: (a) if 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 granting of the request would, in the opinion of the head, be contrary to the public interest. Section 29(1)(a) and (b) are independent requirements and the fact that the first is met carries no presumption that the second is also met.
Section 29(2) provides that the exemption contained in section 29(1) does not apply insofar as the records contain any of the following, (a) rules, procedures, guidelines etc; (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 of an FOI Body and (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.
In case number 170095 (Ms. X and the Department of Education) available on www.oic.ie, the Commissioner annulled the Department's decision to refuse access to similar fire safety survey reports under section 29(1) of the Act. The applicant states that her application is based on that decision.
The Department states that it has commenced legal proceedings against the construction company in relation to a number of school projects that are the subject matter of the request. It argues, therefore, that the circumstances in which the current decision was made are different from those which applied in case number 170095. It states that a deliberative process is ongoing between the Department, the National Development Finance Agency, the Office of the Attorney General and the Chief State Solicitor's Office which involves the gathering of information with a view to making decisions in relation to how to remedy the defects as well as making decisions on how to proceed in relation to legal proceedings. According to the Department, there is a "real and substantial risk" that if the reports were made public at this point, the entire process would be undermined.
Section 29(1)(a) Deliberative Processes
A deliberative process can be described as a thinking process that refers to the way an FOI body makes decisions. 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. I accept that the Department is considering the information contained in the fire safety reports to make decisions in relation to legal proceedings. I find, therefore, that the records meet the requirements of section 29(1)(a) of the Act.
Section 29(1)(b) The Public Interest
In addition to showing that a record contains matter relating to the deliberative processes of an FOI body, an FOI body relying on section 29(1) for its refusal to grant access to a record must also show that release of the record would be contrary to the public interest. The public interest test contained in this provision differs from the public interest test found in other exemptions under the FOI Act. To avail of this exemption, the public body must be of the opinion that releasing the records would be against the public interest. Other exemptions require the public body to be of the opinion that the public interest would be better served by release. In my view, this exemption tends more strongly towards release of the records. This means that public bodies have a higher hurdle to overcome in demonstrating that it applies.
The applicant argues that schools are publically funded buildings that are used by children and young people and as such there is a strong public interest in the release of records related to their safety. The applicant states that five fire safety survey reports have already been released into the public domain and this has not prejudiced the Department's ability to investigate the fire safety issues or to pursue legal action.
The Department states that the reports remain in draft form at this stage and are therefore not appropriate to be released publically. It states that the reports and the findings contained within, when finalised, will be used by the Department to make decisions. The Department states that any safety issues which may be contained in the reports have not yet been agreed and it argues that to release them at this stage will only serve to unnecessarily undermine the public confidence in the school buildings.
There is a public interest in public bodies being in a position to effectively manage safety issues which arise in their areas of responsibility, including issues arising in buildings in which they have an interest. On the other hand, there is a public interest in members of the public having access to information about safety issues concerning buildings that they use.
I note that in its submissions to this Office, the Department states that "the findings of the reports have been relied upon in relation to proceedings which have issued to date, and they will be relied upon in relation to future litigation which is being actively considered by the Department." It is not clear to me that the reports will only be relied on by the Department to make decisions once they have been agreed and that it would be contrary to the public interest to release the reports at this stage for that reason. I accept that the reports are marked "Draft"; however, they appear as complete versions of audits conducted e.g. no text, photographs etc. have been identified as being for amendment. Neither has the Department drawn my attention to any omissions or planned additions to the reports. I am not satisfied that the Department has shown that release of the records would be contrary to the public interest. I find that the requirements of section 29(1)(b) of the FOI Act have not been met in relation to these records. In light of this finding, it is not necessary to consider whether any of the exceptions to section 29(1) which are contained in section 29(2) apply to the records.
Section 31 – Parliamentary, court and certain other matters
The Department argues that the reports are exempt under section 31(1)(a) and (b) of the Act. Section 31(1) provides that a head shall refuse to grant an FOI request if the record concerned: (a) would be exempt from production in proceedings in a court on the ground of legal professional privilege (LPP), (b) is such that the head knows or ought reasonably to have known that its disclosure would constitute contempt of court.
Section 31(1)(a) Legal Professional Privilege
The Department submits that the reports are covered by litigation privilege in that they are confidential communications between the Department and a third party, their dominant purpose being that the findings of the reports have been relied upon in relation to proceedings which have issued to date, and they will be relied upon in relation to further future litigation which is actively being considered by the Department. It argues that when the reports were commissioned, litigation was in contemplation, particularly in light of the wide-spread nature of the issues involved and the large number of schools affected.
LPP enables the client to maintain the confidentiality of 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).
In the High Court case of University College Cork (NUI) v. ESB  IEHC 135, Finlay Geoghegan J. stated: "The document must have been created for the dominant purpose of the apprehended or threatened litigation; it is not sufficient that the document has two equal purposes, one of which is apprehended or threatened litigation." Finlay Geoghegan J. held on the facts before her, that there had been at a minimum, an equal purpose, apart from the purpose of preparation for apprehended or threatened litigation, for the creation of a record for which litigation privilege was claimed. She found that the defendant had not established, as a matter of probability, that the dominant purpose of the creation of the record was apprehended or threatened litigation.
Each of the fire safety assessment reports contains a section headed "Purpose and Scope of Assessment" which states that the purpose of the assessment, as set out in the brief prepared by the Department, was to either provide confirmation that all of the statutory requirements in relation to fire safety are already complied with or, if not, to make appropriate recommendations on the remedial actions required to achieve compliance. Even if I accepted that the reports were created for the purpose of contemplated/pending litigation, it seems to me, that at a minimum, an equal purpose was to confirm compliance with the statutory fire safety requirements or recommend appropriate remedial actions. I am not satisfied that the Department has established, as a matter of probability, that the dominant purpose for the creation of the fire safety assessment reports was apprehended or threatened litigation. I find that the reports are not exempt under section 31(1)(a) of the Act.
Section 31(1)(b) Contempt of Court
The Department argues that release of the reports would breach the sub judice rule and amount to contempt of court as release would tend to interfere with the due administration of the proceedings already issued and which are in active contemplation and release would prejudice the Department in relation to the said litigation.
Breach of the sub judice rule amounts to contempt of court. A matter may be sub judice where it is under judicial consideration and therefore prohibited from public discussion elsewhere. In the High Court case of Desmond v. Glackin (No.1)  3 IR 1, the Court referred to contempt being established if publication has a tendency to interfere with the due administration in the particular proceedings. O'Hanlon J. stated: "It has been stated in other decided cases that there is a need to show a real risk as opposed to a merely remote possibility of prejudice." The mere fact that proceedings have been issued is not sufficient, of itself, to make out the case that breach of the sub judice rule would arise by release of the records or that their disclosure would constitute a contempt of court. Where exemption is claimed on the basis of a breach of the sub judice rule, an explanation as to how release of the records would be a breach of the sub judice rule should be provided.
The Department has not explained how release of the reports would tend to interfere with the due administration of the proceedings already issued and proceedings which are in active contemplation. I note that five fire safety survey reports have been published on the Department's website following the decision in case number 170095. This does not appear to have damaged the Department's ability to formulate its legal arguments. It is not clear to me how release of the records would be a breach of the sub judice rule. I find that the records are not exempt under section 31(1)(b) of the Act.
The Department argues that the reports are exempt under section 32(1)(a)(i), (iii) and (iv) of the Act. Section 32(1)(a) provides that a head may refuse to grant an FOI request if access to the record concerned could, in the opinion of the head concerned, reasonably be expected to prejudice or impair:
(i) the prevention, detection or investigation of offences, the apprehension or prosecution of offenders or the effectiveness of lawful methods, systems, plans or procedures employed for the purposes of the matters aforesaid;
(iii) lawful methods, systems, plans or procedures for ensuring the safety of the public and the safety or security of persons and property;
(iv) the fairness of criminal proceedings in a court or of civil proceedings in a court or other tribunal.
Where an FOI body relies on section 32(1)(a), it should identify the potential harm to the matters specified in the relevant sub-paragraph that might arise from disclosure. A mere assertion of an expectation of harm is not sufficient. The FOI body should specify what it is about the particular record which, if released, is expected to cause the harm envisaged. Having identified the harm envisaged, the FOI body is expected to show how release of the particular record could reasonably be expected to result in that harm. In interpreting the words "could reasonably be expected to", the Commissioner's view is that the test is not concerned with the question of probabilities or possibilities. It is concerned with whether or not the decision maker's expectation is reasonable.
Section 32(1)(a)(i) refers to the "the prevention, detection or investigation of offences" and "the apprehension or prosecution of offenders". According to the Department, the fact that the proceedings it has initiated are civil in nature does not preclude the application of section 32(1)(a)(i) in this matter. The Department states that it "is not in a position to exclude the possibility that offences under health and safety legislation or breaches of building regulations might come to light and may be informed by the findings contained in the requested reports." As outlined above, a mere assertion of an expectation of harm is not sufficient. The fact that offences "might" come to light in the future and "may" be informed by the reports is not a sufficient basis for finding that release of the records could reasonably be expected to prejudice or impair the investigation of offences or the apprehension of offenders. I find that the reports are not exempt under section 32(1)(a)(i) of the Act.
The Department states that the plans for ensuring the safety of the public and the safety of persons and property include both the plan for remedying the defects and the litigation plan to recover the costs of such remediation. It submits that the release of the reports may provide a basis for the company initiating legal proceedings against it for reputational damage which would impede a possible negotiated solution and prejudice the Department's plans to remedy the defects in an efficient a manner.
I note that the Department's plans to remedy the defects were addressed in a statement to the Oireachtas on 6 March 2019, where the Minister for Education stated:
"The Deputy will be aware that last October and November my Department carried out initial investigations into 42 schools that were built by the company to which he refers. He will also be aware that of those schools, 22 required precautionary measures to ensure that they could be safely occupied...The intention is that any remediation works necessary in the 22 schools with precautionary measures will be carried out in 2019. It is envisaged that remediation work in the schools without precautionary measures will take place in 2020." (available at: https://www.oireachtas.ie/en/debates/question/2019-03-06/9/
It seems to me that there is a plan in place for remedying the defects with specific timelines envisaged. The Department also has a separate litigation plan to recover the costs of such remediation works. On the basis of the Minister's statement, it does not appear that the plan to remedy the defects is dependent on the outcome of any litigation. I am not satisfied that release of the records could reasonably be expected to result in prejudice to the Department’s plans to to remedy the defects in an efficient manner. I find that the reports are not exempt under section 32(1)(a)(iii) of the Act.
The principal purpose of section 32(1)(a)(iv) of the Act is to prevent the disclosure of information which could result in unfairness in the conduct of proceedings. The Department submits that the reports not only form a central part to the legal strategy currently being devised in terms of potential defendants and the manner in which the proceedings should be initiated and progressed but are also being relied on in the proceedings.
The Commissioner has drawn a distinction between records which are in the nature of a submission which has been prepared with a view to being seen by other parties and records which relate to the preparation by the FOI body for its conduct of a case or its legal strategy. He has accepted, as a general point, that the release of material relating to the proposed conduct a case is likely to prejudice the fairness of future proceedings. I am not satisfied that fire safety assessment reports are the type of material created in the belief that they would never be disclosed to any outside party nor am I satisfied that they contain the Department's legal strategy or its preparation for its conduct of a case. I find that the reports are not exempt under section 32(1)(a)(iv) of the Act.
Section 36 - Commercially Sensitive Information
The Department argues that the records are exempt under section 36(1)(b) and (c) of the Act. Section 36(1) provides a mandatory exemption for commercially sensitive information. It applies to a record containing:
(b) financial, commercial, scientific, or technical or other information the disclosure of which could reasonably be expected to result in a material financial loss or gain to the person to whom it relates or could prejudice the competitive position of that person, or
(c) information the disclosure of which could prejudice the conduct or outcome of negotiations of that person.
Section 36(2) provides for various exceptions to section 36(1). Section 36(3) provides that Section 36(1) is subject to a public interest balancing test.
The essence of the test in section 36(1)(b) is not the nature of the information but the nature of the harm that might be occasioned by its release. The harm test in the first part of subsection (1)(b) is that disclosure of the information "could reasonably be expected to result in material financial loss or gain." The test to be applied in this regard is whether the decision maker's expectation is reasonable. The harm test in the second part of subsection (1)(b) is whether disclosure of the information "could prejudice the competitive position" of the person concerned. The standard of proof necessary to meet this test is considerably lower than the standard to meet the test of "could reasonably be expected to" in the first part of subsection 36(1)(b). However, the Commissioner takes the view that, in invoking "prejudice", the damage which could occur must be specified with a reasonable degree of clarity.
Under section 36(1)(c), access to a record must be refused where disclosure of information contained in the record could prejudice the conduct or outcome of contractual or other negotiations of the person to whom the information relates. The standard of proof required to meet this exemption is relatively low. Having said that, the Commissioner expects that a person seeking to rely on this exemption would be able to show that contractual or other negotiations were in train or were reasonably foreseen which might be affected by the disclosure and explain how exactly the disclosure could prejudice the conduct or the outcome of such negotiations.
The Department states that there has been significant media coverage of fire safety issues at certain schools and it has sought to ensure that its communications do not contain information which could result in material financial loss to the construction company concerned. It submits that, in light of media coverage, release of the reports into the public domain could prejudice the company’s competitive position. The Department also submits that there are negotiations between the parties as part of the legal process. It states that this includes negotiations regarding contractual rights and obligations in relation to the schools covered by the requested reports but also in relation to other ongoing contracts. It argues that release of these records could prejudice the conduct or outcome of negotiations with the company and it states that the company has previously contacted it to express concern in relation to the public naming of contractors in reports.
This Office contacted the company during the course of the review and provided it with an opportunity to make submissions in relation to this matter. The company re-iterated its concern in relation to release into the public domain of reports which identify the company.
It is in the public domain that there have been fire safety concerns in relation to certain schools and that a number of schools were temporarily closed due to these concerns. It is also in the public domain that the Department has initiated court proceedings against the named company in relation to fire safety issues arising at certain schools constructed by that company. Given the level and nature of information which is already in the public domain, it is not clear that release of the reports could prejudice the company’s competitive position due to adverse publicity or could prejudice negotiations with the company. However, even if I was satisfied that the requirements of the section 36(1) exemption have been met, this section is subject to a public interest balancing test. I consider the public interest below.
Section 36(3) the Public Interest
Section 36(3) provides: "Subject to section 38, subsection (1) does not apply in relation to a case in which, in the opinion of the head concerned, the public interest would, on balance, be better served by granting than by refusing to grant the FOI request."
The applicant argues that the public has a right to expect openness and accountability from Government Departments when it comes to both the spending of public funds and the steps taken to ensure child safety, the safety of the public and publicly funded buildings.
The Department argues that the reports should not be released to protect the company from any prejudice under sections 36(1)(b) and (c) until any legal processes have been exhausted. It argues that there is a public interest in recouping very significant costs associated with remediation works.
Section 36(1) itself reflects the public interest in the protection of commercially sensitive information. The Commissioner accepts that there is a legitimate public interest in persons being able to conduct commercial transactions with public bodies without fear of suffering commercially as a result and it is this public interest which section 36(1) seeks to protect. The Act also recognises, both in its long title and its individual provisions that there is a significant public interest in government being open and accountable. The Commissioner takes the view that, in attempting to strike the balance between openness on the one hand and the need to protect commercially sensitive information on the other, it is legitimate to consider two things:
· the first is the positive public interest which is served by disclosure and
· the second is the harm that might be caused by disclosure.
Under section 11(3) of the FOI Act, an FOI body, in performing any function under the Act, shall have regard to, among other things the need to inform scrutiny, discussion, comment and review by the public of the activities of FOI bodies and facilitate more effective participation by the public in consultations relating to the role, responsibilities and performance of FOI bodies. Even if I was satisfied that release of these reports could prejudice the company’s competitive position or could prejudice negotiations conducted by the Department, it seems to me, that in this case, the public interest in members of the public having access to information about possible fire safety issues concerning buildings that they use and the Department's management of this, outweighs the harms envisaged by the Department and the company. I find that the public interest would, on balance, be better served by the release of the records.
In its submissions to this Office, the Department states that it also wishes to rely on section 42(f) as a ground for refusing the request. That section provides that the FOI Act does not apply to a record 'held or created by ... the Office of the Attorney General ... other than a record relating to general administration'. The Department said it understood that the records at issue are held by the Attorney General's Office. I take this to mean that copies of the reports which the Department itself held and considered in response to the FOI request are also in the Attorney General's Office.
Section 42(f) is restricted to records held or created by the Office of the Attorney General. Where a record is held by, but was not created by, that Office, section 42(f) does not serve to protect all other copies of that record held by other bodies. I find, therefore, that the Department was not justified in refusing access to the records under section 42(f) of the Act.
Having carried out a review under section 22(2) of the Freedom of Information Act 2014, I annul the decision of the Department. I find that the Department was not justified in refusing access to the records under sections 29(1)(a), 31(1)(a)/(b), 32(1)(a)(i)/(iii)/(iv), 36(1)(b)/(c) or 42(f) of the Act. I direct the Department to release the records to the applicant. The relevant records and redactions are identified in the "Scope of Review" section above.
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.