Decision
Mr X and Department of Children, Equality, Disability, Integration and Youth
From Office of the Information Commissioner (OIC)
Case number: OIC-150245-K4Q6S3
Published on
From Office of the Information Commissioner (OIC)
Case number: OIC-150245-K4Q6S3
Published on
Whether the Department was justified in refusing access to minutes of the meetings of its Management Board
In a request dated 17 April 2024, the applicant sought access to the minutes of all meetings of the Department’s Management Board, from January 2023 to the date of the request. No decision on the request issued within the statutory timeframe, and on 23 May 2024 the applicant requested an internal review of the deemed refusal of his request. Again, no decision issued from the Department the statutory timeframe, although on 24 June the Department did issue a letter to the applicant outlining its effective position on his request. In the schedule of records that accompanied this correspondence, the Department identified 7 relevant records, to which it granted access in part, releasing records 1 and 7 in full and records 2 to 6 in part, with material in the records withheld pursuant to sections 28(1)(a) and 40(1)(b) of the FOI Act. On 2 July 2024 the applicant sought a review from this Office of the Department’s decision.
Subsequently, in correspondence received by this Office from the Department in the course of this review, the Department indicated that it no longer sought to withhold in part records 2, 3 and 6, and subsequently released these records in full to the applicant. As record 3 had been the only record in respect of which the Department had cited section 40(1)(b), it no longer maintained its reliance on this provision of the FOI Act.
As this left only two records (records 4 and 5) which the Department continued to withhold in part, I considered it appropriate to contact the applicant to explore with him the possibility of settling the matter on the basis of the records that had already been released to him. The applicant subsequently confirmed that he was not amenable to doing so and requested that this Office’s review continue into the decision of the Department to withhold in part access to records 4 and 5.
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 arguments made by the applicant in correspondence with this Office. I have also had regard to the contents of the records concerned. I have decided to conclude this review by way of a formal, binding decision.
This review is solely concerned with whether the Department was justified, under section 28(1)(a) of the FOI Act, in refusing access in part to records 4 and 5.
Before I set out my substantive analysis and findings, I wish to make some preliminary points. Firstly, I wish to note at the outset that the Department’s processing of the applicant’s request in this case, and indeed in other recent cases before this Office, falls well short of the requirements of the FOI Act. This Office recently highlighted our concerns with senior management of the Department about its handling of FOI requests. The Department has acknowledged its shortcomings in its management of FOI requests and said it is putting in place measures to ensure that it is compliant with its obligations under the FOI Act.
Secondly, it should be noted that section 22(12)(b) of the FOI Act provides that a decision to refuse to grant an FOI request shall be presumed not to have been justified unless the head of the decision making FOI body shows to the satisfaction of this Office that its decision was justified.
Section 28(1)(a) of the FOI Act provides that an FOI body may refuse to grant an FOI request if the record concerned
“(a) 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”.
Section 28(1)(a) is not a harm-based exemption, such that release of a record would lead to particular consequences specified in the particular provision. There is no ‘public interest override’ in this exemption. The section provides for a class based exemption of certain records regardless of their contents. 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, as well as Aides Memoire. For section 28(1)(a) to apply, three requirements must be met. In order to be exempt from disclosure under this provision the record must:
(i) have been (or is/was proposed to be) submitted to the Government for its consideration and
(ii) have been (or is/was proposed to be) submitted by a Minister of the Government or the Attorney General and
(iii) have been created for the purpose of submission to the Government for its consideration.
The records at issue are the minutes of meetings of the Department’s Management Board dated 19 February 2024 (in the case of record 4) and 4 March 2024 (in the case of record 5). In its submissions, the Department stated that section 28(1)(a) applied to records 4 and 5 on the basis that the material in the records that it had withheld contained a reference to a document that was created for the purpose of submission to the Government for its consideration by a Minister of the Government.
I have considered the contents of the parts of the records withheld by the Department under section 28(1)(a), in light of its submissions, and I am not satisfied that any of the three requirements of that provision have been met. Section 28(1)(a) applies to a record that has, 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. The material that was redacted by the Department in the records contains references to memoranda that the Department created for the purpose of submission to the Government for its consideration by a Minister of the Government. However, section 28(1)(a) would only potentially apply to such memoranda themselves. The exemption in section 28(1)(a) does not extend to records that merely reference such memoranda. The records actually under consideration in this review are minutes of meetings and have not, to the best of my understanding, been submitted to the Government by a Minister or anyone else and were not created for that purpose. Thus, while it may be the case that section 28(1)(a) would apply to exempt from release the relevant memoranda themselves, other records that merely contain references to the memoranda do not come within the scope of the exemption. Section 28(1)(a) is concerned with the nature of the particular record, the circumstances of its creation and its subsequent use. The fact that the records here refer to records that may be exempt under section 28(1)(a) is irrelevant in considering whether section 28(1)(a) applies.
On the basis of the foregoing analysis, and bearing in mind the requirements of section 22(1)(b) of the FOI Act which I have outlined above, I am not satisfied that the Department was justified under section 28(1)(a) in withholding the relevant sections of records 4 and 5, and I direct the release of this material.
Having carried out a review under section 22(2) of the FOI Act, I hereby annul the Department’s decision. I find that the Department was not entitled under section 28(1)(a) of the FOI Act to refuse access to the parts of records 4 and 5 that it withheld from release, and I direct the release of this information.
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.
Neill Dougan
Investigator