Decision
Mr X and Department of Education
From Office of the Information Commissioner (OIC)
Case number: OIC-136616-Z1W9Y4
Published on
From Office of the Information Commissioner (OIC)
Case number: OIC-136616-Z1W9Y4
Published on
Whether the Department was justified in refusing access to records relating to a meeting between Department Officials and two named individuals under sections 29(1)(a), 30(1)(c), 36(1)(c) of the FOI Act
10 June 2024
In a request dated 23 November 2022, the applicant sought access to any documents relating to two meetings between the Irish Episcopal Conference and officials from the Department of Education as registered in the lobbying register ( www.lobbying.ie ) and their outcomes. It said the meetings were held on 6 June 2018 in Athlone and Tullamore respectively relating to Circular Letter 0013/2018 issued by the Department of Education in February 2018 in relation to Article 44.2.4 of the Constitution and section 30(2)(e) of the Education Act 1998.
On 21 December 2022, the Department issued a decision regarding part one of the applicant’s request, granting access to a note of the meeting in Athlone. Following a series of communications between the applicant, the Department issued its decision on 9 February 2023 in relation to the second meeting held in Tullamore, wherein it refused the request under sections 29(1)(a), 30(1)(c) and 36(1)(c) of the FOI Act.
On 9 February 2023, the applicant sought an internal review of that decision. On 2 March 2023, the Department affirmed its decision to refuse access to the record relating to the Tullamore meeting. On 17 March 2023, the applicant applied to this Office for a review of the Department’s decision.
I have now completed my review in accordance with section 22(2) of the FOI Act. In carrying out my review, I have had regard to the submissions made by the applicant and to the submissions made by the Department in support of its decision. I have also had regard to the contents of 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 its decision to refuse access to the notes of a meeting held in Tullamore on 6 June 2018, under sections 29(1), 30(1)(c) and 36(1)(c) of the FOI Act.
Section 29(1)
Section 29(1) provides for the discretionary refusal of a request if (a) the record concerned contains matters 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 body considers that the granting of the request would be contrary to the public interest. These are two independent requirements and the fact the first is met carries no presumption that the second is also met. Furthermore, the public interest test at section 29(1)(b) is a strong test. Any arguments against the release should be supported by the facts of the case and it should be shown how release of the record would be contrary to the public interest.
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 automatically does not apply. Any arguments against release under section 29 should be substantiated and supported by the facts of the case.
In its decision on the request, the Department explained that the record at issue is a note of a meeting that took place on 6 June 2018 between staff members of the Department and representatives from CEIST and the Episcopal Commission for Education. In its submissions to this Office, it said the meeting in question was an initial meeting to discuss details of a proposed Deed of Covenant & Charge Agreement which is proposed to be implemented in relation to Non-Ministerial owned school properties. It said the purpose of the meeting was to continue the discussion on a new initiative, which will lead to an agreed legal agreement between the Minister for Education and school patron bodies.
The Department explained that the vast majority of schools are owned by patron bodies and not the Minister for Education. It said these patron bodies are typically religious congregations, such as Diocesan Trusts. It said that in order to protect and secure the Minister’s interest in a patron owned school property which had been in receipt of capital funding from the Department, a Charging Lease was previously applied as a burden onto the title of the property. It said it has been working on a replacement legal framework to replace the old Charging Leases. It said this new agreement, called a Deed of Covenant & Charge, seeks to modernise and improve upon the previous arrangement. It said the Deed of Covenant & Charge seeks to agree aspects such as title registration of (financial) burden, depreciation values on the leases, identification of school properties with mapping and has taken some time to progress. It said the new agreement is still being worked upon and has involved consultations and advice from relevant parties. It said the record in question contains explorative information and opinion from the very outset of the consultations on this strategic issue for the Department. It said negotiations in relation to the Deed are ongoing and that the matter is still under deliberation.
Having regard to the details of the Department’s submissions, I am satisfied that the record at issue contains matter relating to deliberative processes of the Department, namely deliberations relating to the development of a replacement legal framework to replace the old Charging Leases. Accordingly, I accept that the records relate to the deliberative processes of an FOI body and that section 29(1)(a) applies to the record. However, that is not the end of the matter. For section 29(1) to apply, section 29(1)(b) must also apply.
Section 29(1)(b)
As I have indicated above, for section 29(1)(b) to apply, the FOI body must also show that the granting of the request would be contrary to the public interest. Any arguments against the release under section 29(1)(a) should be substantiated and supported by the facts of the case. It is important that the FOI body shows how granting access to the particular records would be contrary to the public interest, e.g. by identifying a specific harm to the public interest flowing from release.
The Department’s Submissions
In its submissions, the Department said that with a complex legal matter, it would not
be in the interest of the consultations to prematurely release details into the public domain. It argued that to do so may hinder the consultative and engagement process with relevant parties. It said deliberations on the Deed of Covenant & Charge are ongoing and that the whole structure and roll out mechanism is yet to be finalised. It said the final agreement will have legal implications for non-minister owned schools and their patrons and for future funding. It said the nature of the negotiation and indeed the nature and concept of the agreement has evolved and changed since the initial meeting and discussion took place. It said it is still hard to quantify what form and what implications the final agreement will have.
The Department argued that the release of premature and exploratory information could unduly complicate the continued negotiations. It said some potential areas of concern may be the misinterpretation of information by persons or parties not privy to the entire process, a proliferation of inquiries leading to time consumption, misrepresentation of both the Department’s and the Patron Bodies’ positions and priorities which have evolved in the intervening time period, as well as a general concern that any delays in the process are not in the best interests of the state.
The Department added that discussions have been conducted, and continue to be conducted, in confidence. It said that the core risk of harm from release of the record would be that the third parties would be reluctant to continue discussions and negotiations regarding the new Deed system, and that the Department needs the third parties to engage to finalise the implementation of the Deed system. It said it was important not to prematurely release information to avoid affecting the implementation of the new system.
It said the negotiation has spanned years at this stage and it is hoped that an agreement could be finalised in 2024. It said it is normal practice in legal negotiation to assume a deliberative discretion.
The Department further said that the level of sensitivity of the negotiations is based on both the paramount importance to state education (property rights), and to the level of involvement, commitment and good will that the Department will require from third party (property owners) in order to reach a desirable outcome. It said its partners in negotiation would also expect confidentiality, especially in a deliberative process, in order that the negotiation can be open, exploratory and frank, while not being subject to premature misinterpretations or expectations on the part of the public or any other adjacent party. It said that for this reason, the public’s best interest is served by waiting for a full and complete negotiation, after which it would be suitably brought into the public domain.
It argued that to release the record could alter the dynamic of the actual negotiation in unforeseeable ways as well as create a level of expectation both in the public domain and on the part of the stakeholders with whom the Department is in negotiation with. It said it simply cannot afford to be premature on this matter, as this negotiation will shape the nature of funding for decades to come. It said that once the agreement is in place, it would be the Department’s intention to release the agreed and final terms, as legally advised and appropriate.
The Applicant’s Submissions
The applicant argued that the public interest is best served by all documents relating to the funding of schools being in the public domain even during the deliberative process. It said there is a public interest in knowing that the constitutional conditions for any state funding of non-Ministerial schools will be met or the reasons or purpose behind any state funding. It said access to documents in relation to Deeds of Covenant will assist in the democratic process. It said that, given the Constitutional rights of parents, it is in the public interest that parents are aware of different interest groups accessing key decision makers in relation to prospective decisions with designated public officials that impact on the education of their children.
The applicant further argued that in this particular case, it is in the public interest to reveal documents relating to the deliberative process regarding a negotiation that has yet to be finalised because it could impact significantly on the constitutional rights of parents and their children. It said that in addition, parental rights are a foundational pillar of the Constitution particularly in relation to the education of their children so it is in the public interest that all documents relating to any proposed decisions should be released. It said parents should not be left with a ‘fait accompli’ which puts them in a position whereby they must accept decisions made in secret that impact on their constitutional and human rights.
The applicant further said it does not see how releasing the record at issue would prejudice the Department’s ability to properly conclude its deliberations. It said the only reason that would impede the Department’s ability to properly conclude the deliberations was if the applicant discovered on reading the document that the Constitutional conditions for the funding of schools was not being met and then used the democratic process to challenge the proposals. It said the democratic process, such as asking the Oireachtas Education Committee to look at the issue should take precedence over any presumed prejudice in concluding the deliberations. It said it did not see in this case how disclosure of the record, which do not disclose the reasons for a decision, may be unfair to the public body and prejudice the integrity of the decision making process.
My Analysis
The public interest test at issue in section 29 is not one of a balancing of competing interests as is to be found in various other exemptions in the FOI Act. Rather, as I have outlined above, granting the request must be contrary to the public interest. 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. The deliberative process at issue in this case concerns a significant and important matter in relation to the future funding of non-Ministerial schools. It seems to me that it would be contrary to the public interest to prematurely release information that might impair the Department’s ability to develop an appropriate alternative agreement that is fit for purpose and, as the Department says, is intended to shape the nature of funding for decades to come.
The Department’s argument is that the release of the record could give rise to a proliferation of inquiries leading to time consumption, misrepresentation of both the Department’s and the Patron Bodies’ positions and priorities which have evolved in the intervening time period, and reluctance by the relevant third parties to continue discussions and negotiations regarding the new system. It suggested that the release of the record would impair the necessary open, exploratory and frank nature of the discussions, in light of premature misinterpretations or expectations on the part of the public or any other adjacent party.
Generally speaking, it is in the public interest to ensure that appropriate decisions are made by FOI bodies. I accept that the Department must have the necessary time and space to engage in deliberative processes that enable proper consideration of all relevant issues in order to achieve such an outcome. It seems to me that, in general, undue or unreasonable interference with those processes would be contrary to the public interest. I accept that the release of the record at issue, at this point in time, could give rise to undue speculation in circumstances where an agreed way forward remains under negotiation. I am also cognisant of the Department’s statement that once the agreement is in place, it is the Department’s intention to release the agreed and final terms, as legally advised and appropriate.
I would add that I do not accept the applicant’s argument that the fact that the final agreement might impact on the constitutional rights of parents and their children means that all documents relating to any proposed decisions should be released. In any event, the release of the record at issue would not, in my view, shed any light on whether any Constitutional impacts might arise in any future agreement.
Having regard to the Department’s submissions and to the contents of the record at issue, I accept that the release of record would, at this point in time, 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 in this case. I would add, however, that this does not mean that the record should remain exempt from release indefinitely. I would find it difficult to accept that the release of the record would be contrary to the public interest following the completion of the negotiations on a new funding agreement.
Section 29(2)
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 any enactment or scheme.
The record at issue essentially contains proposal type information and discussion and consideration of such proposals. I am satisfied that no part of the record falls for release under any of the provisions of section 29(2).
In conclusion, therefore, I find that the Department was justified in refusing access, under section 29(1) of the Act, to the record of the meeting held on 6 June 2018. Having found section 29(1) to apply, I do not need to go on to consider the applicability of section 30(1)(c) and 36(1)(c) to the record.
Having carried out a review under section 22(2) of the FOI Act, I hereby affirm the Department’s decision to refuse access, under section 29(1) of the FOI Act, to the record of the meeting on 6 June 2018
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