From Office of the Information Commissioner (OIC)
Case number: OIC-150705-N6K0B9
Published on
Whether the Department was justified in refusing access to records relating to pre-budget submissions and budget allocations for the International Protection Accommodation Services on the basis of sections 28(1)(c), 29(1), 30(1)(c), 32(1)(a)(iv), 32(1)(b) and 36(1)(b) of the FOI Act
25 July 2025
In a request dated 30 January 2024, the applicant sought the following:
• A copy of any pre-budget submissions prepared for the International Protection Office or for the International Protection Accommodation Services (IPAS)
• A copy of any correspondence between the Department, the two named offices above, and the Department of Finance or the Department of Public Expenditure with regard to their Budget 2024 allocation.
The Department acknowledged receipt of the applicant’s request on 31 January 2024. In its correspondence, it said that the International Protection Office (IPO) is under the remit of the Department of Justice and said that any FOIs relating to that office should be sent to the FOI unit in that Department. It said that it would only be able to process the request in relation to IPAS. The applicant did not dispute this position and did not raise the matter in his request for an internal review or in his application to this Office. As such, I am satisfied that the request is concerned solely with records relating to IPAS and not the IPO.
As the Department failed to issue a decision on the request within the required time-frame, the applicant sought an internal review of the deemed refusal of his request on 5 April 2024. Yet again, the Department failed to meet the statutory time-frame for issuing its internal review decision. On 5 June 2024, the applicant applied to this Office for a review of the Department’s deemed refusal of his request. This Office directed the Department to issue an effective position on the request by 20 June 2024. The Department did not comply with the direction and on 5 July 2024, we issued a section 45 notice to the Secretary General. Under section 45, the Commissioner can require a public body to provide this Office with any information in its possession or control that he deems to be relevant for the purposes of a review.
On 17 July 2024, the Department issued its effective position on the request. It part-granted the request with information withheld under sections 28, 29, 30, 32 and 36 of the FOI Act. On 20 July 2024, the applicant indicated that he wished the review before this Office to proceed in respect of the Department’s effective position.
Where the Commissioner considers that the statement of reasons given by an FOI body in respect of its decision is inadequate, he will, pursuant to section 23 of the FOI Act, direct the Head of the body to provide a fuller statement that complies with the provisions of the legislation. On 27 August 2024, we issued such a notice to the Secretary General. The notice observed that while the Department’s decision quoted extracts from particular sections of the Act, no reasons were given to show how those exemptions applied to the information at issue and the decision showed no consideration of the public interest, as relevant. We directed the Department to furnish a statement in writing to this Office and the applicant to include further information in respect of its decision-making. The statement was required to be provided by 17 September 2024. On 25 September 2024, a statement was furnished (referred to in this decision as the ‘statement of reasons’). The Department revised its position somewhat. It provided further records and information to the applicant and amended the basis upon which particular records were refused, with reference to the same overall exemption provisions. Separately, the Department was invited to make focused submissions in support of its 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 submissions made by the Department and the applicant’s comments in his application for review. I have also examined the records at issue. I have decided to conclude this review by way of a formal, binding decision.
The Department identified 42 records as coming within the scope of the request. In the schedule provided to this Office, the records are numbered 1-23 and attachments are numbered with reference to the record they are attached to (i.e. records 2.1, 2.2, 6.1, 15.1). For ease of reference, I will use the Department’s numbering system in referring to the records at issue.
I note that the schedule provided includes a number of errors. Record 3.1 is listed as having been granted, however, exemption provisions are also listed and a redacted version of the record was included in the records for release. I will consider the record as having been part-granted in that context.
Record 2.1 is listed as having been granted but the version in the records for release includes minor redactions. The Department subsequently confirmed that the redactions appear to have been a clerical error. I expect the Department to release the record to the applicant in full if it has not done so already.
Record 15.1 is also listed as having been granted but does not appear in the records for release. Again, I expect the Department to release the record to the applicant if it has not done so already.
Record 23 is listed as having been refused but a copy of the record was included in the records for release. The Department confirmed that this was a scheduling error and that it had no objection to release.
Based on the above, I am satisfied that the Department has granted access to records 2.1, 4.1, 8.1, 10.1, 11.1, 15.1, 16.1, 17.1, 21.1 and 23. I note that certain of these records comprise extracts from longer documents containing information outside the scope of the applicant’s request and I am satisfied with same. I will not consider these records further in this review, although I direct the Department to ensure that the relevant parts of the records have been provided in full to the applicant.
In respect of records part-granted by the Department, I note that information has also been withheld where it relates to matters outside the scope of the applicant’s request. For example, many of the documents include information relating to estimates or pre-budget submissions in respect of other divisions or work programmes. Having considered the records and the applicant’s request, I am satisfied with the Department’s approach to such material, which I consider to be outside the scope of this review. I will not consider such information further.
In its submissions, the Department said that certain information was withheld from the records in error. It said that it does not redact the names of the Secretaries General of Government Departments as such information is easily attainable public knowledge and redacting such information would not serve any purpose. It said that any such redactions to the records were made in error. I will not consider this information further as part of this review but I expect the Department to release such information to the applicant if it has not done so already.
In the statement of reasons which issued, the Department relied on section 36(1)(a) of the FOI Act. It relied on subsection (b) in its effective position letter and I note that the statement of reasons refers to records containing “financial, commercial, scientific or technical or other information whose disclosure could reasonably be expected to result in material financial loss or gain to the person to whom the information relates”. This text is found in subsection (b). Subsection (a) relates to records containing trade secrets. Having considered the context, I am satisfied that the Department intended to rely on section 36(1)(b) and this is the subsection I will consider below.
Six records have been refused in full while 26 have been part-granted. This review is concerned solely with whether the Department was justified in refusing access to the 32 records, in whole or in part, on the basis of sections 28(1)(c), 29(1), 30(1)(c), 32(1)(a)(iv), 32(1)(b) and 36(1)(b) of the FOI Act.
Before I address the substantive matters arising, I wish to make a number of preliminary comments. As evidenced above, the manner in which the Department processed the applicant’s request and engaged with this Office fell far short of expectations. The Department did not issue decisions in line with the statutory requirements of the FOI Act and this Office had to issue two statutory notices to secure appropriate responses and engagement from the body. While I fully accept that FOI bodies have to make difficult decisions in terms of the allocation of scarce resources, as this Office has stated on many occasions, the administration of the FOI Act is a statutory function which should be afforded as much weight as any other such function. Non-responses and delays of the nature experienced in this case serve to undermine the entire FOI process and are unacceptable. I should add, however, that the Information Commissioner has since met with the Secretary General and commitments were given to put in place measures to ensure that the Department can, in the future, comply with its obligations under the FOI Act.
During the course of the review, and in line with our procedures, the Department was invited to make focused submissions in support of its decision. A number of record-specific questions were posed and answers were provided by the Department. The Department was also informed that due to the number of exemption provisions claimed, all relevant questions would not be listed. It was directed to consider published sample questions associated with each of the relevant exemption provisions. The Investigator asked the Department to ensure that sufficient submissions were made in support of its position, including in respect of any relevant public interest tests or exceptions to the application of exemptions.
While the Department provided responses to the record-specific questions posted, it did not make more detailed submissions in respect of the exemption provisions claimed. The Investigator contacted the Department to clarify if this was an oversight. In response, the Department said that it would not be making any further submissions in respect of the case and said that it is of the opinion that its position has been set out in the statement furnished and in the submissions made.
In light of this, it is important to note that section 22(12)(b) of the FOI Act provides that a decision to refuse to grant a request under section 12 shall be presumed not to have been justified unless the head of the relevant FOI body shows to the Commissioner's satisfaction that its decision was justified. This means that the onus is on the Department to satisfy this Office that its decision to refuse access to the records sought, either in whole or in part, was justified. However, I must also have regard to the findings of the Supreme Court in The Minister for Communications, Energy and Natural Resources and the Information Commissioner & Ors [2020] IESC 57 ("the Enet Case"). In that case, the Court noted that while the presumption places an onus on the FOI body to justify refusal, that does not mean that the conclusion is always that disclosure is to be ordered. The Commissioner must adjudicate the merits of the decision to refuse by reason of an analysis of the records and the interests engaged, which might suggest either disclosure or refusal. That said, I do not believe that I am required to construct arguments to support an FOI body’s broad assertions in the absence of focused submissions.
I also wish to draw attention to the fact that although I am obliged to give reasons for my decision, section 25(3) of the FOI Act requires me to take all reasonable precautions in the course of a review to prevent the disclosure of information contained in an exempt record. This means that the extent to which I can describe the contents of the records is somewhat limited.
Finally, in the latter stages of the review, the Department’s FOI Liaison Officer informed this Office that as part of the transfer of functions ordered by the formation of the new Government at the start of 2025, the Integration function has now transferred to the newly formed Department of Justice, Home Affairs and Migration (the Department of Justice). The Department said that any further follow-up queries should be directed to the Department of Justice. No further queries arose but I confirm that this decision will be copied to that Department.
Section 28(1)(c)
Section 28 provides for the refusal of a request in respect of certain records relating to meetings of the Government. Section 28(1)(c) provides for the refusal of a request if the record sought contains information (including advice) for a member of the Government, the Attorney General, a Minister of State, the Secretary General to the Government for use by him or her solely for the purpose of the transaction of any business of the Government at a meeting of the Government.
For the subsection to apply, the record must contain information (including advice) for a member of the Government, the Attorney General, a Minister of State or the Secretary General to the Government and this information must be for use by that person solely for the purpose of the transaction of any business of the Government at a meeting of the Government. Records covered by this exemption would include departmental briefing notes for individual Ministers attending a Government meeting. The sole reason for the creation of such records is to assist the Government in the conduct of one or more of its meetings and the record ceases to have a purposeful existence after the conclusion of the meeting.
The Department cited section 28(1)(c) in respect of record 18.1 which is described on the schedule of records as a Ministerial budget briefing. In the statement of reasons which the Department provided to this Office and the applicant, it said that record 18.1 was refused as it was created for the purpose of briefing the Minister ahead of a meeting of Government in respect of the Budget 2024 allocation.
Having considered the content of the record and the explanation provided in the FOI body’s statement of reasons, I accept that the record contains information for the Minister for use by the Minister solely for the purpose of the transaction of business of the Government at a meeting of the Government. I am satisfied that section 28(1)(c) applies to the briefing note at record 18.1.
However, that is not the end of the matter. A record to which section 28(1) applies is subject to section 28(3) of the Act. That section provides that section 28(1) does not apply to a record:
a. If and in so far as it contains factual information relating to a decision of the Government that has been published to the general public, or
b. If the record relates to a decision of the Government that was made more than 5 years before the receipt by the head concerned of the FOI request concerned.
The term ‘factual information’ is defined in section 2 of the Act as including information of a statistical, financial, econometric or empirical nature, together with any analysis thereof. The Commissioner takes the view that the use of the word “includes” in the definition of factual information means that while information of a statistical etc. nature should be regarded as factual, regard must also be had to the ordinary meaning of the term when considering its scope. The Commissioner considers that factual information would generally include, for example, material presented to provide a factual background to the central topic in a record. He also takes the view that factual information is distinguishable from information in the form of proposal, opinion or recommendation.
The effect of section 28(3)(a) is that factual information relating to a decision of the Government that has been published to the general public contained in a record to which section 28(1) applies is not exempt under section 28(1). Where section 28(1) applies to a record, the FOI body should consider the contents of the record carefully with a view to identifying any factual information contained in it. There is no evidence before me to suggest that the Department undertook such a consideration, nor has it made submissions in respect of same.
While I am limited in the extent to which I can describe the specific contents of the record at issue, as noted above it comprises a briefing document detailing key budget allocation messages and a summary of selected measures. I have considered information published by the Government in respect of Budget 2024, including the Expenditure Report which is available at www.gov.ie.
It seems to me that much of the information contained in record 18.1 comprises information of a financial nature, namely detail in respect of planned allocations and expenditure. Much of that financial information appears to have been published in the Government’s Expenditure Report. I am satisfied that such factual information therefore relates to a decision of the Government that has been published to the general public. I do accept that certain limited information in the record appears to more accurately comprise proposal-type information or opinions. I find that section 28(1)(c) does not apply, by virtue of the provisions of section 28(3)(a), to the following factual information contained in record 18.1:
• All of the information on page 1
• All of the information on pages 2 and 3 with the exception of information contained in the rows entitled “Impact”
Section 32(1)(a)(iv)
Section 32(1)(a)(iv) provides that an FOI body may refuse access to a record if it considers that such access could reasonably be expected to prejudice or impair the fairness of criminal proceedings in a court or of civil proceedings in a court or other tribunal. The Department refused access to information in record 3.1 on the basis of “section 32(1)(4)”. That specific provision relates to the definition of the term ‘penal institution’. I am satisfied that the Department intended to rely on section 32(1)(a)(iv) as in its statement of reasons it said that a record may be refused where providing access could prejudice the fairness of proceedings in a court or other tribunal. It said it redacted information from record 3.1 which relates to an ongoing legal case which the Department is involved in and which is currently before the courts. It said that the information is pertinent to the case in question and is not otherwise publicly available. It said that, as such, it was refused to ensure the fairness of the court proceedings.
Record 3.1 is a copy of a presentation entitled “Estimates 2024” that is dated, in the Schedule of Records, 11 September 2023. Information has been withheld from two pages of the presentation. I note that the Department has also applied section 36 to refuse “estimated figures” from the record. Having considered the content of the withheld information, I am satisfied that the information relating to legal cases and to which the Department has applied section 32(1)(a)(iv) is found on page 6 of the record.
It is well settled that mere assertions by an FOI body as to harms that might result from disclosure of a record are not sufficient for the Commissioner to find that a particular exemption applies. 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 and having identified that harm, consider the reasonableness of any expectation that the harm will occur. It should explain why releasing the particular record could reasonably be expected to cause the harm which it has identified. It should consider whether the matter specified could reasonably be expected to be prejudiced (that is to say, injured or potentially injured) or could reasonably be expected to be impaired (that is to say, damaged or weakened). 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.
Where a body wishes to rely on section 32(1)(a)(iv) to refuse access to records, it should be able to refer to proceedings that are either underway or that might reasonably be contemplated. The fact that proceedings are not actually in being does not necessarily mean that the exemption does not apply. If there is a real likelihood, as opposed to a remote possibility, of such proceedings coming into being, this may be sufficient. However, the fact that proceedings may be pending does not, of itself, mean that release of records could reasonably be expected to prejudice the fairness of those proceedings.
The principal purpose of section 32(1)(a)(iv) is to prevent the disclosure of information which could result in unfairness in the conduct of particular court proceedings. There are many instances where the release of information could prejudice or impair the fairness of such proceedings. For example, if the disclosure of information were to result in the manufacture or destruction of evidence, interference with potential witnesses, etc. then clearly the fairness of the court proceedings would be prejudiced or impaired. Furthermore, this Office has previously accepted, as a general point, that the release of material relating to the proposed conduct of a case is likely to prejudice the fairness of future proceedings.
In its submissions to this Office, the Investigator asked the Department to explain why the release of seemingly high-level information about court cases could reasonably be expected to prejudice or impair the fairness of relevant proceedings. In response, the Department said that the withheld information was intended to brief officials on potential outcomes of the court cases and the possible impacts on the business of IPAS and the Department. It said that to release this information while the cases are ongoing would be premature and that its position was that the information should be withheld at that point in time.
While I am limited in the extent to which I can describe the withheld information, I should note that the references to court cases in the record are indeed high-level. The record does not contain case reference numbers or names. Nevertheless, I accept that it may be possible to identify the court cases in question. The information in question is found on a page of the presentation entitled ‘immediate challenges’. While high-level, the information does disclose the Department’s thinking in respect of possible outcomes and impacts of the court cases in question. However, the fact that a record may disclose thinking in respect of ongoing proceedings is not sufficient for the section 32(1)(a)(iv) to apply. The question at issue is whether release of the information would prejudice or impair the fairness of proceedings in a court. Having carefully considered the withheld information, I do not accept that its release could result in the relevant harms. The record as a whole relates to the estimates process and inflows and costs. While the record discloses expected or possible outcomes and impacts relating to court cases, it is not apparent to me that the release of such information could prejudice the fairness of proceedings, nor has the Department explained how such harms could occur. The record does not disclose, for example, legal positions being considered by the Department. I would add that the record referred to cases that were due to be heard in November 2023. As such, I presume such hearings have since taken place. Accordingly, I find that the Department has not justified its reliance on section 32(1)(a)(iv) of the FOI Act.
Section 32(1)(b)
Section 32(1)(b) provides for the refusal of a request where the FOI body considers that access to the record sought could reasonably be expected to endanger the life or safety of any person.
Section 32(1)(b) is not a commonly used exemption. This Office takes the view that the exemption should not be applied without careful consideration having been given as to whether the expectation set out in the subsection is a reasonable one in all the circumstances and that it should only be invoked in circumstances of the most serious nature. As assessment of the expected consequences of releasing particular records in terms of endangering life or safety is required. It is not necessary, or indeed possible, to establish that such physical harm will occur but there must be a reasonable expectation of such harm arising.
The Department cited section 32(1)(b) in respect of 21 of the part-granted records. The records in question are copies of email correspondence and the withheld information comprises staff names and details. In its submissions, the Department said that section 32(1)(b) allows for the refusal of a record where access could reasonably be expected to endanger the life or safety of any person. In said that in this case, it is of the opinion that releasing the personal details of staff in the division at present could reasonably be expected to endanger their safety. It said that this opinion is based on careful consideration of the environment in which it operates and a trend of incidents that have occurred relating to its facilities and employees over recent years.
The Department said that the work carried out by staff in procuring, developing and providing accommodation services for people applying for international protection has been a matter of public interest and has prompted much discussion at times. It said that this has also included notable and multiple instances of protest and criminality associated with IPAS facilities. It said that in addition to welcome discourse or peaceful protests that have taken place during this period, the international protection accommodation sector has also had to contend with arson attacks, threats to staff and facilities including threats of fire, animal cruelty incidents, intimidation of people at work, and damage to facilities and staff property. The Department said that between August 2023 and August 2024, there were 33 recorded arson attacks on current, potential or rumoured international protection accommodation centres. It said that others have been subject to protest including criminal damage.
The Department said that protests have taken place outside IPAS centres where Department and provider staff are working. It said that it takes every precaution to protect the identities of residents and it believes that the same protections should be afforded to staff. It said that over the past two years it has had incidents where staff members in the division have been threatened. It also referred to an incident where a more junior member of staff had their personal information shared on social media. It said that given this trend, it considers that the safety of its staff members could be at risk if their names and contact details are released. It said that in the present day, one can easily be tracked online through social media using details such as name and profession. It said that it feels that releasing the names of staff members at this time under FOI poses a tangible risk to them.
The Department said that there have been several incidents of IPAS officials from various public bodies having their names, images and job titles shared on social media due to their association with the work of IPAS. It said that, in addition, it is aware of an incident in which the name of an international protection and integration division staff member was released publicly in the context of an FOI request processed by another public body. The Department said that it believes that in the case of external public officials, in this case colleagues from the Department of Public Expenditure, NDP Delivery and Reform (DPER), a risk also arises by virtue of those individuals being named in the records and associated with IPAS services and decisions. It said that there have been several instances of officials from various public bodies having their names, images and job titles shared on social media due to their association with the work of IPAS, not because they work in that division.
The Department said that as release under FOI effectively constitutes release to the world at large, and given the instances of names and details of public officials being shared online through their connection with IPAS services, it does not consider it appropriate to publish the names of officials in any records that associate them with the work of the division at this time.
I note that in the statement which the Department furnished on foot of the section 23 notice, it said that in redacting the names of staff members, it made every effort to ensure that it is clear which organisation the correspondence originates from and who it is to. It said that it left the domain names and organisations unredacted to make the records easier to follow.
The applicant did not make any specific submissions in respect of the application of section 32(1)(b) though I note that in his application to this Office he stated that the Department “has redacted the name of every single official in the records and they are impossible to follow”.
I have carefully considered the submissions made by the Department. As noted above, this particular exemption is not commonly used. The question I must consider is whether the expectation set out by the Department is a reasonable one in all the circumstances. In order for the exemption to be upheld, it should be possible to clearly link the expectation of serious harm arising to the content and context of the records. I am conscious that the FOI Act generally envisages the release of the names of staff members of FOI bodies where they appear in relevant records. For example, the names of staff members are generally not considered to be personal information by virtue of the exception to the definition of such information in section 2 of the Act. This Office considers that the exclusion is intended to ensure that section 37 will not be used to exempt the identify of a staff member while carrying out his or her official functions. However, that is not to say that other provisions of the Act cannot apply to exempt such information. The Department’s position is that releasing staff names in the current environment could reasonably be expected to endanger the safety of those individuals. I note that it has referenced certain incidents which have occurred including staff members being threatened and having their information shared online.
I have carefully considered the Department’s submissions and the contents of the specific records at issue. As noted above, in claiming section 32(1)(b) it is not necessary, or indeed possible, for an FOI body to establish that relevant harm will occur. What I must consider is whether the Department has shown that there is a reasonable expectation of this. I acknowledge that in the current climate the international protection process is a matter of significant public interest and debate, with strongly held views on all sides. I also appreciate that there have been incidents of serious criminality which occurred during protests at IPAS facilities. I note that the Department has referenced incidents in which staff members have had their information shared on social media due to their association with the work of IPAS. I am generally satisfied that serious incidents have occurred and that such incidents have raised concerns for the Department in respect of the release of staff information. It seems to me that valid concerns currently exist in respect of the behaviour of a cohort of individuals strongly opposed to the State’s approach to international protection applicants and the manner in which they are accommodated. In the specific context and circumstances, I accept that the Department has shown that its expectation that the release of staff information could endanger the life and safety of such individuals is reasonable. Accordingly, I find that section 32(1)(b) applies to exempt release of the names and details of staff contained in the records. I find that section 32(1)(b) applies to the relevant information withheld from records 2-4, 7-13, 13.1a, 14-17, 17.2, 18, 18.2, 19, 20, and 22.
For the avoidance of doubt, the above finding does not preclude this Office from arriving at a different conclusion in respect of similar arguments advanced in future reviews. Each case will be considered on its merits based on the particular facts and circumstances.
Section 29(1)
Section 29 provides for the refusal of a request if (a) the record concerned contains matters relating to the deliberative process of an FOI body, including opinions, advice, recommendations and the results of consultations considered by the body for the purposes 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 met.
In order for section 29(1)(a) to apply, the records must contain matter relating to the ‘deliberative process’ of an FOI body. An FOI body relying on this exemption should identify both the deliberative process concerned and any matter in particular which relates to that process.
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 opinions 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 can no longer apply.
According to the schedule provided, the Department cited section 29(1) in respect of five of the records. Records 5 and 6 were part-granted while records 6.1, 13.1.b and 14.1 were refused in full. In the statement of reasons which issued to the applicant, the Department said that it had redacted certain information from the above records “that relates to a policy that the Department is currently considering and developing”. It said that it came to the conclusion that any benefit of releasing the information in question would be heavily outweighed by the fact that the premature release of the information could hamper the Department’s ability to make a timely and well-informed decision around the policy in question. It said that it therefore decided that it would be contrary to the public interest to release this information prematurely. The Department was invited to make focused submissions in respect of the application of this and other exemption provisions but no such submissions were received.
Having considered the content and context of the records, I am generally satisfied that they relate to a deliberative process, namely to the consideration of various funding options and approaches as part of the State budgeting process. I find, therefore, that the records meet the requirements of section 29(1)(a). I must proceed to consider whether the granting of access to the records would be contrary to the public interest, pursuant to section 29(1)(b).
The public interest test at section 29(1)(b) is a strong test, requiring the FOI body to show that the granting of the request would be contrary to the public interest, and is stronger than the public interest test in many other sections of the Act, which generally requires that the public interest would, on balance, be better served by granting than by refusing to grant the request. This Office accepts that the FOI Act clearly envisages 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, that 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 should be substantiated and supported by the facts of the case. An FOI body should show how granting access to the particular record would be contrary to the public interest, e.g. by identifying a specific harm to the public interest flowing from release.
The Department did not make substantive submissions to this Office in respect of the subsection. In the statement of reasons referenced, it said that release could hamper its ability to make a timely and well-informed decision around the policy in question. However, it has not explained how release could be expected to result in such harms. As noted above, the FOI Act places the onus on the Department to satisfy this Office that its decision to refuse access to the records sought, either in whole or in part, was justified. That said, I must also have regard to the findings of the Supreme Court in The Minister for Communications, Energy and Natural Resources and the Information Commissioner & Ors [2020] IESC 57 ("the Enet Case"). In that case, the Court noted that while the presumption places an onus on the FOI body to justify refusal, that does not mean that the conclusion is always that disclosure is to be ordered. The Commissioner must adjudicate the merits of the decision to refuse by reason of an analysis of the records and the interests engaged, which might suggest either disclosure or refusal.
I have carefully considered the records at issue. The withheld information in record 5 relates to high-level policy options. It is not clear to me that the release of such information would be contrary to the public interest. It seems to me that the options outlined have formed part of the public discourse in respect of international protection and accommodation pressures. Indeed, the Taoiseach has referenced such options and proposals in public statements. It is not evident to me that release of the information would impact the Department’s ability to make policy decisions, as argued. I do not accept that the release of the information would be contrary to the public interest.
Record 6.1 comprises a draft strategic implementation plan in respect of a particular accommodation strand of the White Paper to End Direct Provision. The document appears to have last been updated in April 2023. The White Paper to End Direct Provision was published in 2021. While record 6.1 provides a comprehensive insight into implementation planning at the time the record was revised, I note that a new comprehensive accommodation strategy for International Protection applicants was published in March 2024. That document states that the underlying assumptions on which the White Paper was based needed to be re-examined and that review resulted in the development of the new strategy. In that context, I do not see how the release of a draft plan relating to the previous accommodation strategy could reasonably be expected to result in the harms outlined by the Department. I do not accept that the release of the record would be contrary to the public interest.
Record 13.1.b comprises a table which includes what appears to be costing summaries in respect of particular Department programmes and divisions. Only one of these appears to fall within the scope of the applicant’s request (international protection). Having considered the records released to the applicant by the Department to date, it appears that the detail contained in record 13.1.b has already been released (namely in records 17.1 and 21.1). In that context, I do not accept that release would be contrary to the public interest.
Record 14 appears to comprise a document outlining information about particular core funding measures. Again, the majority of the document appears to fall outside the scope of the applicant’s request as it relates to other divisions and work programmes. Page 15 relates to international protection. Having considered the contents of that page, it is not evident to me that release would be contrary to the public interest. While the information relates to a particular policy proposal, it is one that was initially proposed in the White Paper referenced above and has been the subject of public discussion since. I do not accept that release of the high-level information contained in the record would prejudice the Department’s ability to make or implement a decision in respect of the proposal.
In sum, in respect of records 5, 6.1, 13.1.b and 14.1, it is not clear to me that release of the information could result in any particular disadvantage or harm. I do not accept that release could hamper the Department’s ability to make “timely and well-informed” decisions, as advanced by the FOI body. The Department has not sufficiently explained why it considers that granting release of the information and records would be contrary to the public interest, nor is this evident to me from an examination of the records. Accordingly, I find that the Department has not justified its decision to refuse access to the above records on the basis of section 29(1) of the FOI Act.
The information withheld from record 6 relates to a particular proposed accommodation site. It does not appear that information pertaining to such proposals is publicly available. I note the current climate and the level of public discourse, and at times discord, in respect of proposed international protection accommodation sites. In that context, I accept that the premature release of information about a potential site could result in harms to the Department’s ability to advance proposals, secure property, and make relevant decisions in respect of such works. I am satisfied that section 29(1)(b) applies to the information withheld from record 6 and that the record is therefore exempt from release.
Section 36(1)(b)
Section 36(1)(b) of the FOI Act provides that an FOI body shall refuse to grant a request if the disclosure of the record sought 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 the person in the conduct of his or her profession or business or otherwise in his or her occupation. The essence of the test in section 36(1)(b) is not the nature of the information but the nature of the harm which might be occasioned by its release.
The harm test in the first part of section 36(1)(b) is that disclosure “could reasonably be expected to result in material loss or gain”. This Office takes the view that the test to be applied is not concerned with the question of probabilities or possibilities but with whether the decision maker’s expectation is reasonable. The harm test in the second part of section 36(1)(b) is that disclosure of the information "could prejudice the competitive position" of the person in the conduct of their business or profession. The standard of proof to be met here is lower than the "could reasonably be expected" test in the first part of this exemption. However, this Office takes the view that, in invoking "prejudice", the damage that could occur must be specified with a reasonable degree of clarity.
According to the schedule provided, the Department has applied section 36 to records 1, 2.2 and 3.1. Records 1 and 3.1 were part-granted while record 2.2 was refused in full. In the statement of reasons which issued, the Department said that it redacted some estimated figures relating to ongoing projects from records 1 and 3.1. It said that as these projects are ongoing, it decided not to release the figures at present. It said that to release the information prematurely would affect the Department’s ability to ensure value for money in respect of the projects and as such would not serve the public interest. It did not reference record 2.2.
In its submissions to this Office, the Department said that the figures redacted represent estimates and are not reflective of the true cost of the projects. It said that releasing them in this manner would be misleading. It said that as the projects are ongoing and as similar projects are likely to be undertaken as part of a particular Departmental strategy, it would be premature to release the estimates at present. It said that release would not be conducive to its efforts to ensure value for money in its procurement and in its negotiations with potential suppliers and contractors.
I have carefully considered the contents of the records at issue. Limited information has been withheld from records 1 and 3.1. Record 2.2 has been withheld in its entirety. Having reviewed the statement of reasons provided by the Department, it seems that it is also relying on section 30(1)(c) to refuse access to the record. I will consider that section in due course.
In respect of record 1, the majority of the information withheld relates to the estimated costs of specified projects. It seems to me that the release of such estimates would give an advantage to potential tenderers for any relevant works that progress, in so far as they would be aware of the estimated costs the Department may be willing to bear for the carrying out of those works. Accordingly, I am satisfied that the release of the information withheld from the following sections could reasonably be expected to result in a material financial loss to the Department such that section 36(1)(b) applies:
• Section 1, Existing Level of Service
• Section 2, Capital
I do not accept that the information withheld from Section 1, Supports constitutes commercially sensitive information. The information relates to a proposed Departmental initiative and the estimated costs associated with same. It is not apparent to me that release of the information could result in any of the harms envisaged by section 36(1)(b). Given the specific context, it is not clear to me that release could prejudice the Department’s ability to secure value for money, as argued. I find that section 36(1)(b) does not apply to the information and I direct the release of same.
In respect of record 2.2, I note that the Department’s position is that the majority of the document does not relate to IPAS. Having considered the contents, I agree. The record comprises a pre-budget submission. I am satisfied that information in the record relating to other divisions or work programmes of the Department is outside the scope of the review. Substantive information in respect of IPAS is contained in a section of the document commencing on page 21. However, other information relating to the programme is contained on pages 4, 5, 7, 28, 29, 30 and 46 of the record. I will consider this information in the context of section 36(1)(b). As noted above, the Department did not make submissions in respect of the application of the section to record 2.2. In the request for focused submissions which issued, the Department was asked to explain why record 2.2 had been refused in full. In response, it said that it was refused on the grounds that it was shared in confidence and marked as confidential. For the avoidance of doubt, section 35 of the FOI Act concerns information obtained in confidence. The Department has not sought to rely on this provision.
In respect of section 36(1)(b), I have carefully considered the contents of record 2.2. The majority of the information at issue comprises high-level detail about proposals, assumptions and estimates. I do not accept that any of the relevant harms could flow from the release of such information. Certain tables contain cost summaries in respect of particular IPAS initiatives. I do not accept that the level of detail therein could provide insights or advantages to third parties such that the Department’s competitive position or ability to secure value for money would be prejudiced. I find that section 36(1)(b) does not apply to the information. I will consider this record further in the context of section 30.
One table contained in the record, however, does contain more detailed estimates in respect of particular property development projects. Much of this information is the same as that contained in record 1, to which I have found section 36(1)(b) to apply. I am similarly satisfied that the release of the information as contained in record 2.2 could result in material loss or relevant harms to the competitive position of the Department. I find that section 36(1)(b) applies to the bullet points in the row associated with IPAS contained in the table on page 29.
Finally, in respect of record 3.1, information has been withheld from page 5 of the record. Information has also been withheld from page 6 but I am satisfied that the Department applied section 32 to that information, and I have considered the matter above. Having considered the information withheld from page 5, it is not apparent to me that any the harms specified in subsection (b) could reasonably be expected to flow from release. The information comprises high-level estimates and assumptions. It is not clear to me how the release of such information could impact the Department’s ability to secure value for money, as submitted. The fact that the figures listed in the record may not reflect true future costs is not sufficient for the exemption provision to apply; I must be satisfied that the relevant harms could reasonably be expected. I am not and, accordingly, I find that section 36(1)(b) does not apply to the information withheld from record 3.1.
As I have found section 36(1)(b) applies to certain limited information in records 1 and 2.2, I must also consider whether sections 36(2) or 36(3) serve to disapply subsection (1). Section 36(2) provides for the release of information to which section 36(1) is found to apply in certain circumstances. I am satisfied that none of the circumstances identified at section 36(2) arise in this case.
Section 36(3) provides that section 36(1) does not apply to a case in which the FOI body considers that the public interest would, on balance, be better served by granting than refusing to grant the request.
In considering where the balance of the public interest lies in this case, I have had regard to section 11(3) of the Act which provides that in performing any functions under the Act, an FOI body must have regard to, among other things, the need to achieve greater openness in the activities of FOI bodies and to promote adherence by them to the principles of transparency in government and public affairs and the need to strengthen the accountability and improve the quality of decision making of FOI bodies. In doing so, I have also had regard to the judgment of the Supreme Court in The Minister for Communications, Energy and Natural Resources and the Information Commissioner & Ors [2020] IESC 57 (“the eNet case”). In that case, the Supreme Court found that a general principle of openness does not suffice to direct release of records in the public interest and “there must be a sufficiently specific, cogent and fact-based reason to tip the balance in favour of disclosure”.
Neither the Department nor the applicant made submissions in respect of the public interest test. In its statement of reasons which issued to the applicant, the Department said that releasing the withheld information prematurely, while projects are ongoing, would affect its ability to ensure value for money in respect of the projects and, as such, would not serve the public interest. I have carefully considered the limited information to which I have found section 36(1)(b) to apply. I accept that release of the information would enable the public to assess the potential financial implications of certain proposed or planned projects. On the other hand, having found that the release of the information could reasonably be expected to result in material financial loss or prejudice to the Department, it seems to me that there is a weightier public interest in ensuring the FOI body can endeavour to obtain value for money in any future procurement of services to carry out relevant works or projects. Indeed, section 36(1) itself reflects the public interest in the protection of commercially sensitive information.
In sum, at this stage, I am not satisfied that any sufficiently specific, cogent or fact-based reason to tip the balance in favour of disclosure of the information at issue exists. I find, therefore, that section 36(3) does not apply and that the Department was justified in withholding the relevant information from records 1 and 2.2 under section 36(1)(b).
Section 30(1)(c)
Section 30(1)(c) of the FOI Act provides that an FOI request may be refused if access to the record concerned could reasonably be expected to disclose positions taken, or to be taken, or plans, procedures, criteria or instructions used or followed, or to be used or followed, for the purpose of any negotiations carried on or being, or to be, carried on by or on behalf of the Government or an FOI body. Section 30(2) provides that section 30(1) does not apply where the FOI body considers that the public interest would, on balance, be better served by granting than refusing to grant the request.
An FOI body relying on section 30(1)(c) should identify the relevant negotiations at issue. The Oxford English Dictionary defines “negotiation” as “the action or business of negotiating or making terms with others”. It goes on to define the verb “negotiate” as “to hold communication or conference (with another) for the purpose of arranging some matter by mutual agreement; to discuss a matter with a view to some settlement or compromise”. Relevant factors in considering whether there is, or was, a negotiation include whether the FOI body was trying to reach some compromise or some mutual agreement. This Office also accepts that, generally speaking, proposal-type information relating to a public body's negotiations would be exempt under section 30(1)(c). In deciding whether there are negotiations for the purpose of section 30(1)(c), factors to consider include, for example, whether there is any proposal for settlement or compromise, any indications of 'fall-back' positions, information created for the purpose of negotiations, the FOI body’s negotiating strategy, or an opening position with a view to further negotiation.
Section 30(1)(c) is designed to protect positions taken for the purpose of any negotiation carried on by or on behalf of the Government or an FOI body. It is important to note that the exemption does not contain a harm test and it is sufficient that access to the record concerned could reasonably be expected to disclose such negotiating positions, plans etc. A distinction should be made between the outcome of negotiations and a position taken or plan, procedure etc. used for the purpose of a negotiation. While a record might reveal the outcome of negotiations, it may not necessarily be reasonably expected to disclose the positions taken or reveal plans etc. used for the purposes of negotiations. In addition, the Commissioner has also distinguished between disclosing the existence of a fact and disclosing a position or plan used for the purposes of negotiations.
In the statement of reasons which the Department issued to the applicant, it said that it was refusing records 2.2 and 20.1 on the basis of section 30(1)(c). It said that the IPAS element of the documents includes detailed information in respect of the rates and costs of international protection accommodation. It said that the release of this information would severely undermine the Department’s ability to negotiate effectively in the market and ensure value for money in its contracts. It said that it would be contrary to the public interest to release such information. While the Department has not identified relevant negotiations at issue, having considered the above reasoning, it appears to be arguing that release would disclose relevant information in respect of potential future negotiations in respect of accommodation and service provision.
The schedule provided to this Office also lists record 21 as having been refused on the basis of section 30(1)(c). However, I believe this to have been a scheduling error. Record 21 is a short administrative email. The only information withheld are the names and details of staff members. In line with the Department’s submissions, I believe that it intended to apply section 32(1)(b) to such information and I have considered the record in that context. I am satisfied that such information is exempt from release in line with my findings in respect of section 32, above. Accordingly, there is no need to consider the record further. I will proceed to consider the application of section 30(1)(c) to records 2.2 and 20.1. Both records have been refused in full.
In respect of record 2.2, the Department’s position is that the majority of the document does not relate to IPAS. Having considered the contents and as noted above, I agree. I am satisfied that information in the record relating to other divisions or work programmes of the Department is outside the scope of the review. Substantive information in respect of IPAS is contained in a section of the document commencing on page 21. However, other information relating to the programme is contained on pages 4, 5, 7, 28, 29, 30 and 46 of the record. I have already found that section 36(1)(b) applies to exempt certain information from page 29 of the record and I will not consider this information further. I have carefully considered the remaining information at issue in the record. The information comprises high-level detail about proposals, assumptions and estimates. While the record details anticipated funding requirements, such requirements are at a very high-level. The record does disclose an average rate paid in respect of each international protection applicant accessing emergency commercial accommodation per night. However, the record contains no information about the type or variety of accommodation used. I do not accept that the release of the high-level information at issue could reasonably be expected to disclose procedures, plans, criteria or instructions in respect of any relevant negotiations undertaken or to be undertaken by the Department.
Record 20.1 is a short document detailing an IPAS accommodation invoice analysis undertaken. The information contained in the record effectively comprises actual expenditure in respect of non-State-owned accommodation. As noted above and in respect of section 30(1)(c), a distinction should be made between the outcome of negotiations and a position taken or plan, procedure etc used for the purpose of a negotiation. While a record might reveal the outcome of negotiations, it may not necessarily be reasonably expected to disclose the positions taken or reveal plans or procedures etc. used for the purpose of a negotiation. I consider this to be relevant in respect of record 20.1. While the record details information about overall accommodation expenditure, such detail is high-level. The categories of accommodation referenced are broad. As above, high-level information in respect of average rates of payment is included but no specific details are provided. In that context, I do not accept that the release of the record could reasonably be expected to disclose procedures, plans, criteria or instructions in respect of any relevant negotiations undertaken or to be undertaken by the Department.
In sum, I find that the Department has not justified its decision to refuse access to the above records on the basis of section 30(1)(c) of the FOI Act.
I find that section 28(1)(c) applies to exempt information contained in the rows entitled “Impact” on pages 2 and 3 of record 18.1
I find that section 29(1) applies to exempt information withheld from record 6.
I find that section 32(1)(b) applies to exempt the names and details of staff members contained in records 2-4, 7- 13, 13.1a, 14-17, 17.2, 18, 18.2, 19, 20, 21 and 22.
I find that section 36(1)(b) applies to exempt information withheld from Section 1, “Existing Level of Service” and Section 2, “Capital” in record 1. I find that section 36(1)(b) also applies to exempt the bullet points in the row associated with IPAS contained in the table on page 29 of record 2.2.
I find that the Department was not justified in refusing access to the remaining withheld information and records and I direct the release of same.
Having carried out a review under section 22(2) of the FOI Act, I hereby vary the Department’s decision. I find that it was justified in refusing access to certain information on the basis of sections 28(1)(c), 29(1), 32(1)(b) and 36(1)(b) as described above. I find that it was not justified in refusing access to the remaining withheld information and records on the basis of sections 28(1)(c), 29(1), 30(1)(c), 32(1)(a)(iv) and 36(1)(b) of the FOI Act and I direct the release of same.
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.
Stephen Rafferty
Senior Investigator