Decision
X Solicitor on behalf of Applicant A and the Department of Jobs Enterprise and Innovation (DJEI)
From Office of the Information Commissioner (OIC)
Case number: 130334
Published on
From Office of the Information Commissioner (OIC)
Case number: 130334
Published on
Whether the Department was justified in refusing access to records received by the Department of Jobs, Enterprise and Innovation (DJEI) and sent to the Department of Health from the Competition Authority in connection with (i) the Health Insurance (Amendment) Act 2012 and (ii) the Health (Amendment) Bill 2013
2 October 2014
On 19 July 2013, the applicant sought, under the FOI Act, copies of all agenda, documentation, notes, memoranda, reports, minutes of meetings and records which were received by the Department of Jobs, Enterprise and Innovation (DJEI) from the Competition Authority in connection with:
(i) the Health Insurance (Amendment) Act 2012; and
(ii) the Health (Amendment) Bill 2013.
In addition, the applicant sought copies of all agenda, documentation, notes, memoranda, reports, minutes of meetings and records which were sent by the DJEI to the Department of Health (DOH) as a result of or relating to any form of communication with the Competition Authority by the DJEI in connection with:
(i) the Health Insurance (Amendment) Act 2012; and
(ii) the Health (Amendment) Bill 2013.
On 1 August 2013, the DJEI refused access to the 9 records identified as falling within the scope of the request, citing sections 19(1)(a) and 19(1)(c) of the FOI Act, as amended. On 16 August 2013, the applicant sought an Internal Review of that decision.
On 6 September 2013, the DJEI issued its Internal Review decision which affirmed the original decision applying sections 19(1)(a) and 19(1)(c) to record numbers 1, 3, 4, 6 and 7, and section 19(1)(c) to record numbers 2, 5, 8 and 9.
On 23 December 2013, the Information Commissioner received n application from the applicant for a review of the DJEI's decision.
In carrying out my review, I have had regard to copies of the records which were provided to this Office for the purposes of the Commissioner's review; to correspondence between the DJEI and the applicant as set out above; to contacts between this Office and the DJEI; and contacts between this Office and the applicant, particularly the letters sent by Mr Willy O'Doherty, Investigator, dated 13 March and 18 June 2014 (to which I will refer as "the preliminary views letter(s)" in the remainder of this decision). I have also had regard to the provisions of the FOI Act.
As the timeframe in which Mr O'Doherty invited a response to his preliminary views letter of 18 June 2014 has now elapsed without reply from the applicant, I have decided to conclude the review by way of a formal binding decision.
The scope of this review is confined to assessing whether or not the DJEI was justified under section 19 of the FOI Act in refusing to release the 9 records.
Before setting out my findings, I should point out that while I am required by section 34(10) of the FOI Act to give reasons for my decisions, this is subject to the requirement of section 43(3) that I take all reasonable precautions to prevent disclosure of information contained in an exempt record or matter that, if it were included in a record, would cause the record to be exempt.
This constraint means that, in the present case, the extent of the reasons that I can give is limited. However, I am mindful of the burden of proof under section 34(12)(b) of the Act, which requires the DJEI to show to the Commissioner's satisfaction that its decision to refuse to grant the request was justified.
Section 19(1)(a) of the Act states:
"A head shall refuse to grant a request under section 7 if the record concerned -
(a) has been, or is proposed to be, submitted to the Government for their consideration by a Minister of the Government or the Attorney General and was created for that purpose,.."
Section 19(1)(c) provides:
"A head shall refuse to grant a request under section 7 if the record concerned -
(c) contains information (including advice) for a member of the Government, the Attorney General, a Minister of State, the Secretary to the Government or the Assistant Secretary to the Government for use by him or her primarily for the purpose of the transaction of any business of the Government at a meeting of the Government."
The effect of section 19(1)(c) is to protect from disclosure material used to brief Government members in relation to matters before the Cabinet. The type of records to which this exemption applies includes departmental briefing notes for individual ministers attending a government meeting.
Section 19(3)(a) provides for the release of factual information that is contained in a record to which section 19(1) applies, "if and in so far as it contains factual information relating to a decision of the Government that has been published to the general public".
Finally, section 19(6) provides that the term "record" includes a "preliminary or other draft of the whole or part of the material contained in the record". In this regard, a record is exempt under sections 19(1)(a) or (c) if it is a preliminary or draft of a record to be submitted to Government, or a preliminary or draft of a record for the Minister's use primarily for transacting the business of Government at a meeting of Government, even when not submitted to Government or provided to the relevant Minister.
The records are described in the Schedule which accompanied the DJEI's decision and comprise memoranda for Government (including draft memoranda) and observations concerning proposed legislation.
The applicant contends, inter alia, that
In addition, the applicant states that the records should not be considered to fall within section 19(1)(c) as, they do not "contain information (including advice) for a member of Government for use by him primarily for the purpose of the transaction of any business of the Government at a meeting of the Government". The applicant contends that the Competition Authority gives a competition-related view of proposed legislation and, in this regard, there is a number of possible uses to which such a view may be put in the context of future legislation. It is submitted that the provisions of the FOI Act must be given "a construction that reflects the plain intention of the Oireachtas and the Competition Authority's records are not applicable". The applicant says that access to Government deliberations is not being sought but instead "records agreed with parties other than the State, including the Competition Authority).
As alternative to full release of the records the applicant suggests that factual information relating to Government decisions can be released under section 19(3)(a).
Mr O'Doherty, in his preliminary views letters to the applicant, outlined the DJEI's detailed position in relation to the records at issue.
In summary, the DJEI advised this Office that the Competition Authority was consulted for its views on legislative proposals formulated by the Minister for Health. It said that Section 30(1)(c) of the Competition Act, 2002 gives the Competition Authority a statutory role in advising Government on legislative proposals and that it had been decided to append its views to the Memorandum in the light of this statutory role. The DJEI stated that the records containing the observations from the Competition Authority were generated specifically for the purpose of advising the Minister for Jobs, Enterprise and Innovation and the Government on the proposals circulated by the Minister for Health and for use by the Minister at a meeting of the Government. Its position is that they would not otherwise have been created.
Sections 19(1)(a) and (c) of the FOI Act are mandatory exemptions, and therefore must be applied to records that meet the criteria therein unless one or more of the exceptions set out in section 19(3) are found to apply.
Previous decisions by the Information Commissioner have accepted that section 19(1)(a) applies to records such as Memoranda for Government, Aides Memoire for Government, or preliminary or draft versions of the whole or part of such documents. Section 19(1)(a) has also been found to apply to preliminary, draft, or finalised Ministerial observations in relation to proposals within Memoranda for Government. The issue of records prepared for submission to Government was dealt with in the High Court judgment of Mr Justice Brian McGovern, dated 31 July 2008, in the case of the Minister for Education and Science v the Information Commissioner [2006 No.12 MCA] Unreported.
From my examination of the records in question, it is clear that the observations from the Competition Authority were appended, in full, to the observations of the Minister for Jobs, Enterprise and Innovation. I understand that this is in accordance with the standard procedure of the DJEI when the views of the Competition Authority are sought on Memoranda for Government.
In response to queries from the Investigator in the course of the review, the DJEI provided an administrative audit trail in respect of the records. I am satisfied from an examination of the circumstances (including the timescale involved and the contacts between the officials involved) of the DJEI's seeking observations from the Competition Authority on the Draft Memoranda for Government and on the Bills that :
From my examination of the records and their genealogy, I am satisfied that records 1, 3, 4, 6 and 7 were
I am also satisfied that records 2, 5, 8 and 9 contain information, (including advice) for a member of the Government for use by him primarily for the transaction of any business of the Government at a meeting of the Government.
Accordingly, I am satisfied that records 1, 3, 4, 6 and 7 are exempt from release under sections 19(1)(a) of the FOI Act. I am also satisfied that records 2, 5, 8 and 9 are exempt from release under section 19(1)(c) of the Act. However, that is not the end of the matter as section 19(3)(a) provides that section 19(1) does not apply to a record "if and so far as it contains factual information relating to a decision of the Government that has been published to the general public".
It is not entirely clear from the records whether there is a published Government decision relating to the information in the records. In any case, as both of the Bills the subject of the records have been enacted, it seems reasonable to accept that the decision of the Government in relation to the proposals of the Minister for Health to proceed with their drafting has been published to the general public as envisaged by Section 19(3)(a).
The FOI (Amendment) Act, 2003 provided for the inclusion, in the 1997 Act, of a definition of factual information as follows: "factual information includes information of a statistical, econometric or empirical nature, together with any analysis thereof".
The use of the word "includes" in the definition means that while information of a statistical, econometric or empirical nature should be regarded as factual, regard must also be had to the ordinary meaning of the term when considering its scope. Factual information is, in my view, distinguishable from information in the form of proposal, opinion or recommendation. In this case, certain general background statements regarding the statutory role of the Competition Authority, the necessity to secure EU Commission approval and residents' entitlement to in-patient services in public hospitals are, in my opinion, factual information relating to a Government decision that has been to which section 19(3) applies. For ease of reference, the factual information in the records is identified in the tables at Appendix 1 to this decision.
I am satisfied that the factual information identified is not otherwise exempt under the FOI Acts.
Having carried out a review under section 34(2) of the FOI Act, I hereby vary the decision of the Department in that I affirm its decision to refuse access to the records under section 19(1)(a) and 19(1)(c) but direct it to release factual information in accordance with section 19(3)(a) of the Act.
A party to a review, or any other person affected by a decision of the Information Commissioner following a review, may appeal to the High Court on a point of law arising from the decision. Such an appeal must be initiated not later than eight weeks from the date on which notice of the decision was given to the person bringing the appeal.
Elizabeth Dolan
Senior Investigator