Decision
Mr. Ken Foxe, Right to Know CLG and Office of Public Works
From Office of the Information Commissioner (OIC)
Case number: OIC-117719-V4P8Q3
Published on
From Office of the Information Commissioner (OIC)
Case number: OIC-117719-V4P8Q3
Published on
Whether the OPW was justified in refusing access to records relating to the 'Room to Improve' programme that featured on RTÉ Primetime on 1 April 2021
27 October 2022
In a request dated 16 April 2021, the applicant sought access to records held by the OPW that referred or related to the 'Room to Improve' programme that featured on RTÉ’s Primetime series on 1 April of that year, to cover the period 1 March 2021 to the date of the request. After an exchange of correspondence between the applicant and the OPW, the applicant refined the scope of his request to cover records held in the email account of the OPW chairman only.
The OPW refused the applicant’s request under section 15(1)(c) of the FOI Act, stating that to grant the request would cause a substantial and unreasonable interference with or disruption of work of the OPW Property Management section. On 30 June 2021, the applicant sought a review by this Office of the OPW’s decision. On 29 September 2021, the Senior Investigator in this Office annulled the decision of the OPW on the request and directed the OPW to consider the matter afresh (OIC decision 109689).
In a new decision on the request decision dated 2 December 2021, the OPW partially granted the applicant’s request, withholding certain records in whole or part under sections 15(1)(d), 29(1), 40(2)(i)(n) and 30(1)(c) of the FOI Act. On the same date, the applicant requested an Internal Review of the OPW’s decision. In its Internal Review decision of 23 December 2021, the OPW varied its initial decision by granting access in full to 44, and partial access to another one, of the records that it had originally withheld. Of the remaining records, the OPW withheld 70 in full and partially withheld 31. On 4 January 2022, the applicant applied to this Office for a review of the OPW’s decision.
In its internal review decision of 23 December 2021, the OPW cited sections 29(1), 30(1)(c) and 37(1) of the FOI Act as grounds for withholding, in whole or part, the records at issue. It did not reference sections 40(2)(i) or (n) in the internal review decision, despite these provisions of the FOI Act being listed in the schedule of records as grounds for refusing access to records 9, 95, 97, 100, and 107. In addition, sections 40(2)(i), (n) and (r) were cited by the OPW in the schedule of records as grounds for withholding record 70, while section 42(j) was cited in the schedule of records as a basis for withholding record 72.1. However, neither sections 40(2)(i), (n),(r) nor 42(j) were referenced in the OPW's internal review decision of 23 December 2021. In order to clarify the position, I sought confirmation from the OPW as to whether it was relying on sections 40(2)(i), (n), (r) and/or 42(j) as grounds for withholding the records outlined above. The OPW reverted to indicate as follows:
As the applicant had not had an opportunity to consider the arguments of the OPW that records 70, 95, 97, 100 and 107 were (in addition to being exempt under various provisions of the FOI Act) outside the scope of the request, we contacted him and put same to him, and invited him to make any additional submissions that he wished. The applicant subsequently indicated that there were no further submissions that he wished to make.
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 applicant’s comments in his application for review and to the submissions made by the OPW in support of its decision. I have also examined the records at issue. I have decided to conclude this review by way of a formal, binding decision.
In referring to the records at issue in this review, I have adopted the numbering system used by the OPW in its correspondence with the applicant. It is worth noting that in this numbering system, the OPW has numbered any relevant attachments to emails as sub-categories of the email itself, so that (for example), in the case of an email with two attachments, the email would be numbered “record 1” and the attachments “record 1.1” and “record 1.2”, and so on.
In relation to the OPW’s reliance on various subsections of section 40(2) of the FOI Act, it should be noted that the exemption provided for by section 40 is set out in section 40(1), with section 40(2) setting out a list of the types of records to which section 40(1) may apply. Accordingly, where the OPW has indicated a reliance on a subsection of 40(2), I will examine the extent to which the record is exempt under section 40(1) of the FOI Act.
Before I consider the substantive issues, I wish to address a number of preliminary matters. Firstly, it is important to note that a review by this Office is considered to be de novo, which means that it is based on the circumstances and the law as they pertain at the time of the decision.
Secondly, section 18(1) of the FOI 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 head of the public 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). The Commissioner takes the view that, generally, neither the definition of a record nor the provisions of section 18 envisage or require the extracting of particular sentences or occasional paragraphs from a withheld record for the purpose of granting access to those particular sentences or paragraphs.
This review is concerned solely with a) whether the OPW was justified in withholding, in whole or part, the records sought by the applicant under sections 29(1), 30(1)(c), 37(1),
40(1) and 42(j) of the FOI Act, and b) whether it was justified in adjudging certain records (or parts of certain records) outside the scope of the request.
Records deemed out of scope by the OPW
The OPW withheld, in whole or part, records 3, 19, 70, 72, 72.1, 74, 78, 95, 97, 98-99, 100, 101-106, 107, 108-108.2 and 129, on the basis that they were outside the scope of the request. I have examined the material that the OPW has argued does not fall within the scope of the request. In respect of records 3, 19, 72.1, 98-99, 101-106 and 108-108.2, I am satisfied that the records, or portions of records, withheld by the OPW are indeed outside the scope of the request. I note that, in circumstances where I have determined that record 72.1 is outside the scope of the request, I am not required to examine the extent of its exemption under section 42(j) of the FOI Act.
The matter is less clear in respect of certain of the other records. It is worth repeating that the applicant’s original request was for records held by the OPW “referring or relating to” the relevant RTÉ programme that aired on 1 April 2021. Bearing that in mind, I consider in the first instance that records 74, 95, 97, 100 and 107 clearly refer or relate to the programme in question, and specifically are concerned with the OPW’s response to certain queries raised by RTÉ in advance of the programme’s screening. In those circumstances, I am not satisfied that records 74, 95, 97, 100 and 107 are outside the scope of the request.
In addition, in the case of record 129, while I am satisfied that the first redaction is outside the scope of the request, I consider that the second redacted section of the record comprises the OPW’s reflections on the programme after it had aired. Notwithstanding the fact that the record post-dates the broadcast of the programme, the content clearly refers or relates to it. Accordingly, I consider that record 129, apart from the first redaction, is not outside the scope of the request and cannot be withheld on that basis.
I note that the OPW argued that records 74, 95, 97, 100, 107 and 129 were also exempt from release under section 29(1), and in addition that records 95, 97, 100 and 107 were exempt under sections 30(1)(c) and 40(2)(i) and (n). Below, I examine the extent to which those provisions of the FOI Act might apply to these records.
In relation to record 72, I find that it clearly falls within the scope of the request as it relates to the RTÉ programme at issue and the OPW’s response to certain queries raised by RTÉ in that context. I note that the relevant material in record 72 is also contained in record 74, which the OPW argued was exempt from release under section 29(1). In those circumstances, I will also consider below the extent to which record 72 might also be exempt under that section of the FOI Act.
In relation to records 70 and 78, I note that the relevant material (two paragraphs in particular) contained in the two records is identical. It seems to me that the first redacted paragraph falls outside the scope of the request. In relation to the second paragraph, I accept that the majority of the paragraph is outside the scope of the request. In the second paragraph, a portion of one sentence refers in passing to the RTÉ programme at issue and may, therefore, technically be within the scope of the request. However, I am cognisant of the aforementioned provisions of section 18 of the FOI Act and the Commissioner’s interpretation of same. Bearing these factors in mind, I consider that the release of one part of one sentence that appears in records 70 and 78 is not required by section 18(1), and moreover would render the resulting part-record misleading for the purposes of section 18(2). In those circumstances, I find that records 70 and 78 are outside the scope of the request. I note that the OPW also argued that record 70 was exempt from release under sections 40(2)(i), (n) and (r). In circumstances where I have found the record to be outside the scope of the request, I am not required to examine the extent to which it might be exempt from release under those provisions of the FOI Act.
Section 29(1)
The OPW cited section 29(1) of the FOI Act as a basis for withholding access, wholly or in part, to records 9-9.2, 35, 35.1, 37.1, 39-39.2, 40, 42-43, 45, 48, 55, 55.1, 57-69, 71, 73-77, 79.1, 79.2, 80.1-81.1, 82.1, 84, 84.1, 85.1, 87.1, 95, 95.1, 97, 97.1, 100, 107, 111, 112, 120, 120.2-127 and 132. In addition, as outlined above, I also consider that section 29(1) may potentially apply to record 72, as the relevant material in that record is also contained in record 74.
Section 29(1) provides that an FOI body may refuse to grant access to a record if (a) the record concerned contains matter relating to the deliberative processes of an FOI body (including opinions, advice, recommendations, and the results of consultations, considered by the body, the head of the body, or a member of the body or of the staff of the body for the purpose of those processes), and (b) the granting of the request would, in the opinion of the body, be contrary to the public interest. Thus, the exemption at section 29(1) has two requirements: the record must contain matter relating to the deliberative process, and its disclosure must 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 also met. It is therefore important for FOI bodies to show to the satisfaction of this Office that both requirements have been met.
The records at issue consist of internal OPW email communications and in some cases the attachments to these emails. In its submissions, the OPW argued that section 29(1) applied because, following its decision to prepare a detailed document in response to queries it had received from RTÉ in advance of the Primetime broadcast on 1 April 2021, a significant amount of internal OPW communication took place as part of that document’s preparation. The OPW stated that this involved numerous e-mail communications between a number of staff and several iterations of the document being shared internally as it evolved from draft stages to the final version supplied to RTÉ. The OPW argued that these communications amounted to a deliberative process and as such fell within the scope of section 29(1).
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.
I have examined the records that the OPW withheld or redacted under section 29(1) and accept that, with the following exceptions, they show the OPW to be engaged in a procedure that falls within the above description. For the avoidance of doubt, I include record 72 in this assessment. Accordingly, the records fall within the scope of section 29(1)(a) of the FOI Act.
The exceptions to this finding are:
The public interest test at section 29(1)(b) is a strong test, and any arguments against release should be supported by the facts of the case and it should be shown how release of the record(s) would be contrary to the public interest. This Office has previously held 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, this 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 of the Act should be substantiated and supported by the facts of the case. It is important that the FOI body shows to the satisfaction of this Office how granting access to the particular record(s) 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 OPW stated that it had identified, as public interest factors in favour of withholding the material, the public interest in it being able to effectively pursue its business without undue impediment and in being able to make informed decisions in the course of carrying out its functions while maintaining the confidentiality of its deliberative process in some circumstances. It stated that, having reviewed the records, its view was that there was no exceptional circumstance that would warrant release of the records, and that therefore the public interest was best served by refusal. Although the OPW did not identify any public interest factors in favour of release, in carrying out any review I must consider the general principles of openness and transparency as set out in section 11(3) of the FOI Act, which provides that an FOI body must have regard to 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.
Having done so, on balance I am minded to accept the public interest arguments of the OPW regarding its ability to conduct its deliberative processes without undue impediment and in confidence where appropriate. Accordingly, I find that section 29(1)(b) does not serve to preclude the exemption of the application of section 29(1)(a) the material I have found to come within the scope of the latter subsection of the FOI Act. I find that, with the exception of the material I have identified above, the records or parts of records that the OPW has sought to withhold under section 29(1) (as well as record 72) are exempt from release under that provision of the FOI Act.
Section 30(1)(c)
The OPW cited section 30(1)(c) of the FOI Act as a basis for partially withholding access to records 9.1, 95, 97, 100, 107, and for refusing access to record 120.2 in full. I have already determined that the relevant redactions (that is to say, those not relating to names, email addresses and/or medical history of individuals) made to records 95, 97, 100 and 107 are exempt from release under section 29(1). I have also found that record 120.2 is similarly exempt. In those circumstances I do not need to consider the applicability of section 30(1)(c) to those records. This leaves only record 9.1 to be examined in the context of section 30(1)(c).
Section 30(1)(c) provides that an FOI body may refuse to grant an FOI request if access to the record concerned could, in the opinion of the body, 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(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 this exemption does not contain a harm test. As such, it is sufficient that access to the record concerned could reasonably be expected to disclose such negotiation positions, plans etc. There is no requirement to take a view on the consequences of the disclosure of those positions or that disclosure would have an adverse effect on conduct by the Government or the FOI body of its negotiations.
In seeking to rely on section 30(1)(c), an FOI body should identify the relevant negotiations at issue. 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, or information relating to the FOI body’s negotiating strategy, or its opening position with a view to further negotiation. In seeking to rely on section 30(1)(c) of the Act, an FOI body should also demonstrate that the release of the record could reasonably be expected to disclose positions taken (or to be taken), or plans, etc, used or followed (or to be used or followed) for the purpose of any negotiations.
In its submissions, the OPW argued that the information it had withheld from the records under section 30(1)(c) related to ongoing negotiations with one of its landlords. It stated that media commentary in relation to same could have a serious effect on the State’s position in negotiations which, it said, were at a critical stage. The OPW stated that the release of the information pertaining to these negotiations could damage the financial interest of the State and prejudice future negotiations.
In the case of record 9.1, I would note that in considering the applicability of section 30(1)(c) to a record, 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 accept that the material redacted from this record may be said to reveal the outcomes of certain negotiations undertaken by the OPW. However, I do not consider that it can be said to reveal the plans, positions, etc, taken by the OPW or any other FOI body in relation to such negotiations.
Based on the above, I find that the material redacted by the OPW from record 9.1 is not exempt from release under section 30(1)(c) of the FOI Act.
Section 40(1)
The OPW cited sections 40(2)(i) and (n) of the FOI Act as grounds for partially withholding records 9, 70, 95, 97, 100 and 107, and cited section 40(2)(r) as an additional basis for partially withholding record 70. As outlined above, the exemption provided for by section 40 is set out in section 40(1), with section 40(2) providing a list of records to which section 40(1) may apply. Ordinarily, it would therefore be appropriate to examine the applicability of section 40(1) to the records in respect of which the OPW has cited section 40(2). However, in circumstances where I have already determined that the relevant redactions to records 9, 95, 97, 100 and 107 are exempt from release under section 29(1), I do not need to consider the applicability of section 40(1) to those records. In addition, and as outlined above, as I have determined that record 70 is outside the scope of the request, I am not required to examine the extent to which it is exempt from release under section 40(1).
Section 37(1)
The OPW cited section 37 as a basis for redactions made to records 41.1, 60, 61, 64-69, 71, 73, 79, 82, 83, 85, 86, 88, 93.1 and 120.1. As outlined above, I also consider it appropriate to examine the applicability of section 37(1) to redactions relating to names, email addresses and/or medical history of individuals made to records 35, 43, 55, 57-59, 75-77, 81, 95, 97, 100 and 107.
Section 37(1) provides that subject to the other provisions of the section, an FOI body shall refuse to grant a request if access to the record concerned would involve the disclosure of personal information relating to third parties. The effect of section 37 is that, generally speaking, access to a record shall be refused if it would involve the disclosure of personal information relating to individual(s) other than the requester, unless one of the other relevant provisions of section 37 applies.
Section 2 of the FOI Act defines personal information as information about an identifiable individual that either (a) would ordinarily be known only to the individual or to members of his/her family or to his/her friends, or (b) is held by an FOI body on the understanding that it would be treated by the FOI body as confidential. Furthermore, the Act details 14 specific categories of information that is personal information without prejudice to the generality of the foregoing definition.
In addition, Paragraph (I) of section 2 of the FOI Act excludes certain information from the definition of personal information, including "... in a case where the individual holds or held office as a director, or occupies or occupied a position as a member of the staff, of a public body, the name of the individual or information relating to the office or position or its functions or the terms upon and subject to which the individual holds or held that office or occupies or occupied that position or anything written or recorded in any form by the individual in the course of and for the purpose of the performance of the functions aforesaid ...". Similar information is excluded in the case of service providers under Paragraph (II) of section 2.
In its submissions regarding section 37(1), the OPW stated that to release the material it had redacted from the above records would involve the disclosure of personal information of individuals. It argued that the redactions made under section 37(1) related to the personal health information of an OPW staff member, as well as the personal details of individuals who were not OPW employees.
I have examined the material at issue and accept that it is personal information for the purposes of section 2 of the Act, and therefore falls within the scope of section 37(1). It is worth noting that certain of the redactions made to the records relate to the name and email address of an individual who is the director of an organisation which appears to have been providing public relations services to the OPW. It could be argued that this information falls within the exclusion from the definition of personal information contained in Paragraph
(II) of section 2 of the FOI Act (relating to service providers to FOI bodies). However, this Office has previously ruled in a recent decision on a related matter, which also involved the OPW (case reference 108628), that the exclusion in Paragraph (II) does not serve to exclude the names of company directors or shareholders or the staff members of such companies from the definition of personal information. In those circumstances, the name of the relevant individual at issue comprises personal information and falls within the scope of section 37(1).
However, that is not the end of the matter as 37(1) is subject to the other provisions of section 37. Section 37(2) provides that section 37(1) does not apply in certain circumstances. I am satisfied that no such circumstances arise in this case and that section 37(2) does not, therefore, apply.
Section 37(5) provides that a request that would fall to be refused under section 37(1) may still be granted where, on balance (a) the public interest that the request should be granted outweighs the right to privacy of the individual to whom the information relates, or (b) the grant of the request would benefit the person to whom the information relates. I am satisfied that section 37(5)(b) of the Act does not apply.
In relation to the applicability of section 37(5)(a), I must consider whether the public interest in granting the request outweighs, on balance, the public interest in protecting the privacy rights of the individual or individuals to whom the information relates. As outlined above, in carrying out any review, this Office has regard to the general principles of openness and transparency set out in section 11(3) of the FOI Act, which provides that an FOI body must have regard to 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. It is important to note that in The Minister for Communications, Energy and Natural Resources and the Information Commissioner & Ors [2020] IESC 57, 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”. Although the Court’s comments were made in cases involving confidentiality and commercial sensitivity, I consider them to be relevant to the consideration of public interest tests generally.
In relation to the issue of the public interest, it is also important to have regard to the comments of the Supreme Court in The Governors and Guardians of the Hospital for the Relief of Poor Lying-In Women v. the Information Commissioner [2011] IESC 26 ("the Rotunda case"). It is noted that a true public interest should be distinguished from a private interest.
The FOI Act recognises the public interest in the protection of the right to privacy both in the language of section 37 and the Long Title to the Act (which makes clear that the release of records under FOI must be consistent with the right to privacy). It is also worth noting that the right to privacy has a constitutional dimension, as one of the unenumerated personal rights under the Constitution. Privacy rights will therefore be set aside only where the public interest served by granting the request (and breaching those rights) is sufficiently strong to outweigh the public interest in protecting privacy.
In its submissions regarding section 37(5)(a), the OPW stated that, in considering the public interest factors which favoured withholding the records, it had taken account of the public interest in protecting the right to privacy of staff members in relation to their personal circumstances; the public interest in members of the staff members being able to communicate in confidence with public bodies and without fear of disclosure in relation to personal or sensitive matters; the public interest in public bodies being able to perform their functions effectively; and the public interest in preventing the inappropriate release of personal information. The OPW did not identify any public interest factors in favour of release. However, in weighing the matter I have had regard to the general principles of openness and transparency in the FOI Act that I have referenced above.
The information that I have identified in the records as falling within the scope of section 37(1) of the Act is of an inherently private nature. Having regard to the nature of the information at issue and to fact that the release of information under the FOI Act is, in effect, release to the world at large, I find that the public interest in granting access to the information at issue does not, on balance, outweigh the right to privacy of the relevant individuals. I find, therefore, that section 37(5)(a) does not apply.
Accordingly, I find that the information in the above records that I have identified as comprising personal information is exempt from release under section 37(1) of the FOI Act.
Having carried out a review under section 22(2) of the FOI Act, I hereby vary the OPW’s decision. I find that it was justified in withholding records 3, 19, 70, 72.1, 78, 98-99, 101-106 and 108-108.2 on the basis that they were outside the scope of the request. In addition, I accept that the first redaction to record 129 is outside the scope of the request.
Of the records within scope, I find that the OPW was justified in withholding, wholly or in part, records 41.1, 60, 61, 64-69, 71, 73, 79, 82, 83, 85, 86, 88, 93.1 and 120.1 under section 37(1) of the FOI Act. In addition, the redacted material relating to names, email addresses and/or medical history of individuals in records 35, 43, 55, 57-59, 75-77, 81, 95, 97, 100 and 107 is also exempt from release under section 37(1).
In relation to section 29(1), I find that the OPW was justified in withholding those records it sought to exempt under that provision, with the exception of the records or parts of records outlined above which do not fall within the scope of section 29(1)(a), the release of which I hereby direct, namely:
I also find that the OPW was not justified in withholding record 9.1 under section 30(1)(c), and I direct the release of that record.
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 requester 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.
Neill Dougan, investigator