Decision
Mr Ken Foxe, Right to Know CLG and Department of Housing, Local Government and Heritage
From Office of the Information Commissioner (OIC)
Case number: OIC-153010-Y0R2V6
Published on
From Office of the Information Commissioner (OIC)
Case number: OIC-153010-Y0R2V6
Published on
Whether the Department was justified in refusing access to a Ministerial submission relating to the Mulcahy Report on the basis of sections 28(1)(a), 29(1), 31(1)(a), 37(1) and/or 42(f) of the FOI Act
14 November 2025
In a request dated 30 August 2024, the applicant sought access to “a copy of any briefings, memos, reports, submissions, or updates prepared for either the minister or the secretary general with regard to the Mulcahy report into planning in Co Donegal”. He specified that the request covered the time-period from 1 January 2023 to the date of his request. In a decision dated 26 September 2024, the Department refused access to one record it identified as coming within the scope of the request under section 29(1) of the FOI Act. On the same day, the applicant sought an internal review of that decision. On 14 October 2024, the Department affirmed its refusal of the request. On 18 October 2024, the applicant applied to this Office for a review of the Department’s decision.
In its submissions to this Office during the course of the review, the Department also sought to rely on sections 28(1)(a), 31(1)(a), 37(1) and 42(f) of the FOI Act in support of its refusal. The applicant was notified of the FOI body’s reliance on the additional exemption provisions and was provided with an opportunity to comment. No further submissions have been received to date.
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 to the applicant’s comments in his application for review. I have also examined the record at issue. I have decided to conclude this review by way of a formal, binding decision.
This review is concerned solely with whether the Department was justified in refusing access to the record at issue under sections 28(1)(a), 29(1), 31(1)(a), 37(1) and/or 42(f) of the FOI Act.
Before I address the substantive issues arising, I would like to note 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 disclosure of information contained in an exempt record. This means that the extent to which I can describe the contents of the record is limited.
Moreover, it is important to note that a review by this Office is considered to be “de novo”, which means that in this case, it is based on the circumstances and the law as they pertain at the time of the decision and is not confined to the basis upon which the Department initially reached its decision. Accordingly, in light of the “de novo” nature of our reviews, I consider it appropriate to consider the applicability of the additional exemptions cited, notwithstanding the fact that the provisions were not initially relied upon as a ground for refusing the request.
In the Schedule of records the Department prepared when processing the request, it described the record at issue as a “Submission for decision in relation to the Memorandum for the Government regarding the Review into Certain Planning Matters in Respect of Donegal County Council – The Mulcahy Report”. The record comprises a Ministerial Submission (pages 1 to 3) and four appendices, namely;
• the Terms of Reference of the Mulcahy report (pages 4 and 5),
• a Draft Memorandum for Government (pages 6 to 17),
• legal advice from the Office of the Attorney General (pages 18 to 37), and
• a draft letter for the Minister’s consideration (pages 38 to 42).
The Department has maintained its position that the record as a whole should be considered exempt by virtue of section 29(1). However, it has also claimed the below additional exemptions in respect of various parts of the record:
• Ministerial Submission – section 37(1)
• Terms of reference of the Mulcahy report – section 31(1)(a)
• Draft Memorandum for Government – sections 28(1)(a)
• Legal advice from the Office of the Attorney General – sections 31(1)(a) and 42(f)
• Draft letter for the Minister’s consideration – section 37(1)
Having considered the nature and contents of the record, I accept that it is appropriate to consider the Department’s claim that the record as a whole should be considered exempt by virtue of section 29(1). The entire record is, in essence, a submission to the Minister seeking approval for a particular course of action in relation to the Mulcahy Report. The appendices to the submission contain relevant information to allow the Minister to make an informed decision. In my view, the various appendices to the submission are integral to the understanding of the submission and therefore form part of the overall record.
Section 29(1) provides for the refusal of a request if (a) the record concerned contains matter relating to the deliberative process 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 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.
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 options 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.
In its submissions, the Department said that the deliberative process in question relates to the proposed course of action by the Minister with respect to the publication of the Mulcahy report and any further steps to be taken on foot of the report. It said the record outlines the background to the Mulcahy report and the content of the report and a proposed course of action with respect of the Minister’s response to the report.
Having considered the contents of the record, I accept that it relates to a deliberative process, namely the consideration of matters relating to the Mulcahy report with a view to making a decision in respect of proposed actions and options. I find, therefore, that the requirements of section 29(1)(a) are met. However, that is not the end of the matter as I must also consider whether granting access to the record 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.
In his correspondence with the Department and with this Office, the applicant said that the Department had given no explanation in its decision of the harm that might be caused by the release of the record and that no consideration had been given to whether parts of the report can be released. He said any deliberative process involved in the Mulcahy report appears to be completely open-ended. He said it is becoming increasingly clear that the Department will never take any action arising from the report. He said that it has been with the Department for seven years and “it is clear now that it will never be published”. He said that it has been “under consideration” for years and by several different Ministers. He said that the Department has never made clear what this “under consideration” means and when it will end. He questioned whether a public body can withhold records permanently simply by saying that the document remains “under consideration” even though there is no consideration taking place.
In its submissions, the Department argued that the granting of the request would be contrary to the public interest. It said the process relating to the Mulcahy Report and the events covered have the potential to give rise to litigation from several parties. It said that as such, the premature of release of records relating to the Report carries significant potential to contaminate the decision-making process and to impair a future decision. It said release would impair the integrity and viability of the decision-making process to a significant degree without a countervailing benefit to the public.
On the matter of the possible release of parts of the record, the Department said that the release in part of the limited elements of the record which may not relate to the deliberative processes of the Department would not meaningfully convey the general sense of the wider record and as such their release could not be considered practicable.
In respect of the Ministerial Submission and the appendix comprising the draft letter for the Minister’s consideration, the Department said that personally identifiable information would need to be redacted from those parts of the record prior to release, pursuant to section 37(1) of the FOI Act. It said that as such, the record would be released in a manner that would not fairly disclose the reasons for the decision and that would prejudice the integrity of the decision-making process. It noted “the significant and delicate balancing of the constitutional rights to privacy and good name of those named in the Report with the interests of the public in the transparency in the public sector and the possible benefits to be realised from the release of the report and the limited potential for justice to be done relative to the financial and other costs which could be imposed on the State through the release of the report”. It said that release of the relevant parts would impair the integrity and viability of the decision-making process to a significant degree without a countervailing benefit to the public. It said the process relating to the Mulcahy report and the events covered have the potential to give rise to litigation from several parties. It said that as such, the premature release of records relating to the report carries significant potential to contaminate the decision-making process and to impair a future decision.
In respect of the appendix comprising the Terms of reference of the Mulcahy report, the Department, noting that section 18 of the FOI Act provides for the release of parts of records, said that the release of a supporting document, in the absence of the submission to which it relates, would not practicably convey the general sense and meaning of the wider document. It said that as such, it would not be appropriate to use section 18 to release this element of the record without the wider elements to which it relates, particularly in the context of the request made.
On the matter of the applicant’s contention that it appears that the report will not be published, the Department said it would emphasise that it may not be appropriate for the Mulcahy report to be published, bearing in mind the constitutional right to one’s good name and fair procedures. It said the issues in relation to balancing the potential harms of release with the public interest in the publication of the report require careful consideration by the Minster and officials, in particular noting the conclusion of the Commissioner for Environmental Information (OCE-103174-W9G4J2 (Legacy Reference CEI-18-0019)) that the report “does not contain significant “wider” recommendations”.
On the matter of the applicant’s concern that the Department will never take any action arising from the report, the Department said the fact that a submission was prepared in November 2023 demonstrates definitively that the report and the Minister’s response was still under active consideration despite the passage of time. It said that the applicant’s contention that there is no deliberative process active or ongoing is inaccurate. It said that an updated submission is currently being prepared to account for changes in the legislative environment since the relevant record was created, highlighting further that the matter is still under active consideration by the Department.
It is relevant to note here that the Mulcahy Report comprises a report of a review undertaken in 2017 into alleged planning irregularities in Donegal. In a written response to a PQ on 18 February 2025, the Minister explained that he was considering the report and intended to “bring this matter to Government for consideration in due course”. He described the report as a report of a scoping review that that as such, it does not make findings as to the truth or otherwise of allegations that have been made by an individual against named persons. He said the Attorney General's Office has been consulted on both the content of the report and on the issue of its potential publication and dissemination.
On the matter of the publication of the report, the Minister noted the decisions of the Commissioner for Environmental Information (referenced above) and the Information Commissioner (in Case OIC-59426) in relation to requests to publish the report would also be taken into account. He further noted that in both cases, both the Commissioner for Environmental Information and the Information Commissioner decided not to grant access to the report. He noted that our decision in Case OIC-59426 stated that "placing the details concerned in the public domain would significantly breach the rights to privacy of identifiable individuals." He further noted that the decision of the Office of the Commissioner for Environmental Information noted that the report does not contain "significant "wider" recommendations" that could be applicable to the planning system as a whole. He concluded, therefore, that the publication of the report was “a matter that requires careful consideration given that the report details unproven allegations against named persons”.
As the Department has stated, the record at issue in this case concerns a proposed course of action by the Minister with respect to the publication of the Mulcahy report and any further steps to be taken on foot of the report. Section 29 is an explicit recognition of the fact that there will be occasions where the disclosure of the details of an FOI body’s deliberations before a decision based on those deliberations has been made would be contrary to the public interest. In my view, this is one such occasion.
It is in the public interest that reasoned and considered decisions are made by Government. While the significant delays in deciding what further action, if any, should be taken on foot of the report are both regrettable and understandably frustrating for those who have called for the release of the report, I am satisfied that deliberations are ongoing in respect of those matters. I am also conscious that the matters under consideration concerning the publication of the report and what further action might be warranted are complex, particularly in light of the potential breach of privacy rights referenced above. In my view, the Department and the State must be allowed to engage in deliberative processes that enable proper consideration of all relevant issues in order to arrive at an appropriate decision. Having regard to the complexity of the matters under consideration and the significant public interest in the matter that gave rise to the Mulcahy report, it seems to me that requiring the release of the record at issue before substantive decisions have been taken would be very likely to give rise to undue or unreasonable interference with the relevant decision making process. In my view, such interference would be contrary to the public interest. I find, therefore, that the second requirement of section 29(1), as set out in section 29(1)(b) of the FOI Act, has also been met.
On the matter of the applicant’s comment that the Department failed to consider partial release of the report, it is relevant to note here that section 29(2) provides that section 29(1) does not apply if and in so far as the record contains any or all of the following:
(a) matter such as rules, procedures, guidelines, interpretations and precedents used, or intended to be used, by an FOI body for the purpose of making decisions, determinations or recommendations
(b) factual information
(c) the reasons for the making of a decision by an FOI body
(d) a report of an investigation or analysis of the performance, efficiency or effectiveness of an FOI body in relation to the functions generally or a particular function of the body
(e) a report, study or analysis of a scientific or technical expert relating to the subject of his or her expertise or a report containing opinions or advice of such an expert and not being a report used or commissioned for the purposes of a decision of an FOI body made pursuant to an enactment of scheme.
I am satisfied that subsections (a), (c), (d), and (e) do not apply in this case. On the matter of whether subsection (b) applies to any part of the record, there are two matters I believe to be of relevance.
First, as I have outlined above, the Department argued that various other exemptions serve to exempt significant parts of the report. I agree. For example, pages 6 to 17 of the record comprise a Draft Memorandum for Government. Section 28(1)(a) of the FOI Act provides that an FOI body may refuse to grant an FOI request if the record concerned has been, or is proposed to be, submitted to the Government for its consideration by a Minister of the Government or the Attorney General and was created for that purpose. Previous decisions by the Information Commissioner have accepted that section 28(1)(a) applies to records such as Memoranda for Government and preliminary or draft versions of the whole or part of such documents. I am satisfied that the draft Memorandum for Government was proposed to be submitted to the Government for its consideration by a Minister of the Government and was created for that purpose. I am satisfied that section 28(1)(a) serves to exempt pages 6 to 17 and that none of the other provisions of section 28 serve to disapply the exemption. I am further satisfied that section 28(3) does not serve to disapply subsection 1. I am also satisfied that pages 18 to 37 are exempt from release pursuant to section 42(f) of the Act. That section provides that, with the exception of a record relating to general administration, the FOI Act does not apply to a record held or created by the Attorney General or the Office of the Attorney General (AGO). Pages 18 to 37 comprise correspondence created by the AGO that does not relate to general administration.
The second matter of relevance is the applicability of section 18 of the Act. Section 18(1) of the Act provides that if it is practicable to do so, access to an otherwise exempt record shall be granted by preparing a copy, in such form as the body concerned considers appropriate, of the record with the exempt information removed. Section 18(1) does not apply, however, if the copy provided for thereby would be misleading (section 18(2) refers). This Office takes the view that neither the definition of a record under section 2 of the Act nor the provisions of section 18 envisage or require the extracting of particular sentences or occasional paragraphs from records for the purpose of granting access to those particular sentences or paragraphs. Generally speaking, therefore, this Office is not in favour of the cutting or "dissecting" of records to such an extent.
In all of the circumstances, when the information contained in the record that is exempt under other provisions of the Act is disregarded, it seems to me that the release of any remaining information that might be regarded as factual for the purposes of section 29(2)(b) would, indeed, be misleading, having regard to the overall substance and context of the record.
In conclusion, therefore, I find that the Department was justified in refusing access, under section 29(1) of the Act, to the entirety of the record at issue.
Having carried out a review under section 22(2) of the FOI Act, I hereby affirm the Department’s decision. I find that it was justified in refusing access, under section 29(1) of the FOI Act, to the record at issue.
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.
Stephen Rafferty
Senior Investigator