Decision
Mr. X & Dublin City Council (‘the Council’)
From Office of the Information Commissioner (OIC)
Case number: OIC-155123-C3H9K7
Published on
From Office of the Information Commissioner (OIC)
Case number: OIC-155123-C3H9K7
Published on
Whether the Council was justified in refusing access to certain information relating to the Gracefield Road to Vernon Avenue Walking and Cycling phase of its Coolock to Clontarf Active Travel Scheme.
17 November 2025
On 20 September 2024, the applicant sought access to copies of correspondence and minutes of meetings between the Council’s Active Travel Office and its Traffic Department concerning the Gracefield Road to Vernon Avenue Walking and Cycling Phase of the Coolock to Clontarf Active Travel Scheme (the Scheme), and a copy of an Arborist Survey and Report undertaken in respect of the Scheme. As the Council failed to issue a decision the request, the applicant sought an Internal review of the deemed refusal of his request on 7 November 2024. On 10 December 2024, the applicant contacted this Office as he had not, at that stage received the Council’s internal review decision. Following engagement with this Office, the Council issued its effective position on the request on 2 January 2025, wherein it refused access to 35 records it deemed to come within the scope of the request pursuant to section 29(1) of the FOI Act. It said it had previously issued a copy of a ‘tree survey and tree constraints plan’ to the applicant and that its decision was confined to records between its Active Travel Programme Office and Traffic Department. It did not provide the applicant with a schedule of the relevant records. On 8 January 2025, the applicant sought a review by this Office of the Council’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 both the applicant and the Council. I have also examined the records at issue. I have decided to conclude this review by way of a formal, binding decision.
During the course of the review and following engagements with this Office, the Council revised its position and on 25 August 2025, it granted access in full to 11 records, part granted access to 19 records and refused access to 5 records. I note that the schedule provided to this Office numbers the records from 1 to 35. Record 34 is listed in the schedule as having been part-granted and is described in the schedule as ‘Traffic/ActPRo Meeting Minutes 26/06/24 ’. The Council subsequently confirmed to this Office that the information redacted from record 34 related to other Active Travel Schemes and was therefore outside the scope of the applicant’s request. I have examined the redacted information, and I am satisfied that it is concerned with other Active Travel Schemes. I will give no further consideration to record 34 in this review.
The scope of this review is concerned solely with whether the Council was justified in refusing access to records 2, 10, 11, 29 and 35 and to redact information from records 1, 5, 7, 8, 9, 12, 13, 14, 17 to 23, 26, 30 and 31 pursuant to section 29(1) of the FOI Act.
During the course of the review, the applicant raised a number of concerns about the Council’s failure to provide a detailed schedule of records when processing his request. Among other things, he noted that the Code of Practice issued by the Central Policy Unit (CPU) of the Department of Public Expenditure, Infrastructure, Public Service Reform and Digitalisation provides that schedules should be provided with decisions, as did a report this Office published in 2020 following an investigation we conducted into the practices and procedures adopted by FOI bodies for the purpose of compliance with the provisions of the Act. He further noted that section 48(3) of the FOI Act provides that FOI bodies must have regard to the Code of Practice issued by CPU in the performance of their functions under the Act. He also noted that the Schedule the Council eventually provided during the review did not contain details of the number of pages in each record, contrary to the sample schedule in the FOI Decisions Makers Manual issued by CPU.
The Council has been subject to the FOI Act for many years now and should be fully aware of its obligations under the Act and of the supporting materials made available by CPU to support its processing of requests. While the provision of a schedule is not a legal requirement, the applicant rightly pointed out that (i) the FOI Act requires that the Council must have regard to the Code of Practice issued by CPU which provides that a decision-maker shall prepare a schedule of records and (ii) a sample schedule is contained with the CPU Decision Makers Manual. I expect the Council to take steps to ensure that all of its decision makers are aware of the need to provide a schedule of records with future decisions.
Section 29
Section 29(1) provides for the discretionary 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. It is therefore important for FOI bodies to satisfy this Office that both requirements have been met. The provision further states that, without prejudice to the generality of paragraph (b), the FOI body shall, in determining whether to grant or refuse to grant the request, consider whether the grant thereof would be contrary to the public interest by reason of the fact that the requester concerned would thereby become aware of a significant decision that the body proposes to make.
Section 29(2) provides that subsection (1) does not apply to a record if and in so far as it 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.
Section29(1)(a)
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 Council said that the design of the Gracefield Road to Vernon Ave Walking and Cycling Phase of the Coolock to Clontarf Route Active Travel Route (DCC/21/0009) involves delivery of protected cycle lanes and pedestrian improvements over a route length of 2.5km, along Gracefield Road, Brookwood Avenue, Sybill Hill Road and Vernon Avenue. It said that meetings and correspondence between the Active Travel Programme Office and Traffic Department concerning this scheme and other active travel projects are a deliberative process in the design of such projects. It said meetings and correspondence are therefore largely contemplative in nature. It said the records sought relate directly to the gathering of information from multiple sources, weighing, and considering this information as part of the deliberative process of the Active Travel Programme Office in relation to the design of the scheme. It said this also includes the creative process of formulating a design, observations on proposals and ideas in the draft stage and joint consideration of these by the Councils Active Travel Programme Office and Traffic Department. The Council noted the design of the scheme is currently ongoing.
Having considered the Council’s submissions and the contents of the records in question, I am satisfied that the records contain matter relating to deliberations on the Gracefield Road to Vernon Ave Walking and Cycling Phase of the Coolock to Clontarf Route Active Travel Route. I therefore find that the records meet the requirements of section 29(1)(a).
Section 29(1)(b)
The public interest test at section 29(1)(b) is a stronger public interest test than the public interest test in many other sections of the Act, requiring the FOI body to show that the granting of the request would be contrary to the public interest. This Office has previously held that the Act clearly envisaged 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 its submissions, the Council said that as part of the design process many aspects of the scheme can change throughout. It said that release of information into the public domain prior to the conclusion of the overall deliberative process could lead to confusion, misinformation, and public distress and threaten the overall delivery of the project for the community. It said this could also distract from the ongoing deliberative process to deliver a final version of the project on the ground. It said the records at issue form part of the overall deliberative process between the Councils Active Travel Programme Office and Traffic Department for the delivery of the project and it would not be in the public interest for the records to be released at the design stage of the project. It said the design of these schemes can be complex and involve problem solving on interventions at proposed locations, with those involved in the deliberations needing to be in a position to express opinion freely without the concern of these views being taken out of context. It said this process is integral to the delivery of Active Travel projects for communities in Dublin City and it would not be in the public interest for the records to be released at the design stage of the project.
The Council added that once the deliberative process has concluded and a decision has been made on the design, all the information on projects is published through a public consultation and subsequent public consultation report prior to the commencement of any work. It explained, as an example, that an outcome of its deliberations was made public with the publication of the revised preliminary designs and Public Consultation Report in September 2024. It said the design of the scheme is currently ongoing. It said the design process for an active travel project follows the governance procedures of the National Transport Authorities Project Approval Guidelines and Dublin City Councils Corporate Projects Support Office.
The information at issue in this case includes details of proposals, opinions and discussions on various aspects of the ongoing project that remain under consideration such as design arrangement layouts, draft drawings and matters that may need to be addressed prior to finalising the scheme design of the walking/cycle lanes for public use. The broad purpose of section 29(1) to is afford public bodies time and space to consider all relevant issues. It allows for the frank and candid discussion and consideration of various options without undue external interference before a decision is actually made. Generally speaking, it is in the public interest to ensure that appropriate decisions are made by FOI bodies. I accept that if the Council was to be required to release such information without having had an opportunity to fully consider the information with a view to making informed decisions, it could lead to undue external interference, such as increased lobbying on matters that have not yet been decided upon and may not ultimately form part of the final solution.
I also consider the Council’s submission that the scheme in question follows the governance procedures of the National Transport Authorities Project Approval Guidelines to be of relevance. According to the Council’s website, “A Dublin City Council Active Travel scheme goes through seven phases, which are part of the National Transport Authority (NTA) Project Approval Guidelines ”. One of those phases allows for public consultation and the publication of a public consultation report. I further note the Council’s submission that once the deliberative process has concluded and a decision has been made on the design, all the information on projects is published through a public consultation and subsequent public consultation report prior to the commencement of any work. As such, it further seems to me that requiring the release of the information at issue at this point in time would also serve to undermine the integrity of that process, which would, in my view, be contrary to the public interest.
In all of the circumstances, therefore, I find that the release of the information at issue would be contrary to the public interest. In sum, I find that the second requirement of section 29(1), as set out at section 29(1)(b) of the FOI Act, has also been met in this case.
I am also satisfied that the information at issue does not fall within any of the categories set out in section 29(2). Accordingly, I find that the Council was justified in withholding, under section 29(1) of the FOI Act, the information at issue.
Having carried out a review under section 22(2) of the FOI Act, I hereby affirm the Council’s decision to withhold certain information from the records at issue under sections 29(1) of the FOI Act.
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