Decision
Mr. Ken Foxe, Right to Know CLG and Standards in Public Office Commission
From Office of the Information Commissioner (OIC)
Case number: OIC-131914-H5K3T5
Published on
From Office of the Information Commissioner (OIC)
Case number: OIC-131914-H5K3T5
Published on
Whether the Commission was justified in refusing access to copies of correspondence between the Commission and the Department of Public Expenditure & Reform relating to lobbying and cooling-off periods for former officeholders
In a request dated 1 August 2022, the applicant sought access to copies of correspondence between the Commission and the Department of Public Expenditure & Reform (‘the Department’) in 2022 relating to lobbying, cooling-off periods for former officials/officeholders, and fundraising for political parties through draws, excluding any standard day-to-day administrative correspondence between the two bodies.
On 22 September 2022, the Commission issued its decision. Of the 45 records it identified as falling within the scope of the request, it granted access to three records (records 2, 4 and 40) and part-granted access to one record (record 3) with certain parts of that record redacted under section 31(1)(a) of the Act. It refused access to the remaining records under sections 28(1)(c), 29(1) and 30(1)(c). On 4 October 2022, the applicant sought an internal review of that decision, following which the Commission affirmed its original decision. On 27 October 2022, the applicant sought a review by this Office of the Commission’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 applicant’s comments in his application for review and to the submissions made by the Commission in support of its decision. 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.
In correspondence with this Office the Commission clarified a number of matters relating to the records at issue. It noted that record 12 as listed on the schedule does not exist. It said this was due to an administrative error in which a duplicate record was misnamed on the schedule. It added that record 14 is essentially a duplicate of record 13 (with the email header removed). I also note that record 11 is a duplicate of record 28 and record 32 is a copy of record 30. Having reviewed the records, I am satisfied that I can exclude records 11, 12, 14, and 32 from the scope of this review.
In addition, the Commission said that record 36 was incorrectly described as ‘SIPO comments on draft provisions’ in the schedule associated with this request. It said that this record is in fact the alternative text of a provision on service of notices provided to the Department by the Office of the Attorney General and forwarded by email (record 35) to SIPO for comments.
During the course of the review, the Commission indicated that it was now seeking to rely on section 31(1)(a) to refuse access to records 5 and 36 in full and to certain parts of records 13, 15, 16, 17, 18, 20, 22, 25, 26, 28, 29, 30, 31, 34, 37, 38, 42, 43, 44 and 45.
The scope of this review is therefore concerned with whether the Commission was justified in refusing access to the relevant records, in whole or in part, under sections 28, 29, 30(1)(c) and 31(1)(a) of the FOI Act.
Before I address the substantive issues arising, it is important to note that a review by this Office is considered to be “de novo”, which means that in this case, it is based on the circumstances and the law as they pertain at the time of the decision and is not confined to the basis upon which the FOI body reached its decision. Accordingly, in light of the “de novo” nature of our reviews, I consider it appropriate to consider the applicability of section 31(1)(a), a mandatory exemption, to the additional records identified by the Commission during the review, notwithstanding the fact that the provision was not initially relied upon as a ground for refusing access to the records in the Commission’s decisions on the request.
The records at issue in this case comprise correspondence between the Commission and the
Department. The majority of the correspondence relates to proposals by the Minister for
Public Expenditure and Reform to publish a Regulation of Lobbying (Amendment) Bill. The
Regulation of Lobbying (Amendment) Bill 2022 was subsequently published on 22 September 2022, after the request was submitted by the applicant. Record 33 comprises correspondence concerning proposed amendments to legislation relating to the Ethics Acts. The Commission’s position is that this matter remains under consideration and as of now the Government has not approved the heads of any bill in the area.
As set out above, during the course of this review the Commission sought to rely on section 31(1)(a) to refuse access to records 5 and 36 and to parts of records 3, 13, 15, 16, 17, 18, 20, 22, 25, 26, 28, 29, 30, 31, 34, 37, 38, 42, 43, 44 and 45.
Section 31(1)(a) provides for the mandatory refusal of a request if the record concerned would be exempt from production in proceedings in a court on the ground of legal professional privilege. Legal professional privilege enables the client to maintain the confidentiality of two types of communication:
• confidential communications made between the client and his/her professional legal adviser for the purpose of obtaining and/or giving legal advice (advice privilege), and
• confidential communications made between the client and a professional legal adviser or the professional legal adviser and a third party or between the client and a third party, the dominant purpose of which is the preparation for contemplated/pending litigation (litigation privilege).
The concept of "once privileged always privileged" applies where privilege is based on legal advice privilege, but not where it is based on litigation privilege. Thus, unless otherwise lost or waived, legal advice privilege lasts indefinitely. For advice privilege to apply, the communication must be made between a client and his/her professional legal adviser in a situation where the legal adviser is acting in a professional capacity. This Office accepts that privilege can apply to records that form part of a continuum of correspondence that results from the original request for advice. Moreover, providing the prerequisites of advice privilege are present, the fact that a professional legal adviser is employed as an in-house adviser does not prevent the client from asserting privilege over the communications at issue.
In its submission to this Office, the Commission argued that the records, or parts of records, at issue attract legal advice privilege as they constitute the provision of advice by either the Department’s legal adviser or the Office of the Attorney General on the provisions of the proposed legislation. With regard to records 25, 29, 31 and 34, the Commission argued that parts of these records contain legal advice as provided by its in-house legal adviser.
Records 3, 5, 13, 16, 17, 18, 20, 22, 26, 28, 30, 34, 37, 38, 42, 43 and 45 comprise correspondence between officials in the Commission and the Department discussing proposed wording for the Regulation of Lobbying (Amendment) Bill. Records 15 and 36 comprise attachments to some of that correspondence. Records 25, 29 and 31 comprise draft copies of the Bill which includes comments from either the Department or the Commission on certain provisions. Record 44 comprises the Minister’s response to correspondence from the Chairperson of the Commission outlining the Commission’s views on a particular provision within the General Scheme of the Bill which had been published.
During the review, the Investigator asked the Commission to identify the specific parts of records 13, 15, 16, 17, 18, 20, 22, 25, 26, 28, 29, 30, 31, 34, 37, 38, 42, 43, 44 and 45 it was seeking to withhold under section 31(1)(a). In response, the Commission provided copies of the records, wherein it highlighted the following:
• Record 13: the third paragraph and the first sentence of the fifth paragraph in the email sent 29 March 2022 at 17:36;
• Record 15: certain text included in the column headed “SIPO Comment 30/3” on pages 1, 4, and 8;
• Records 16, 17, 18, 20, 22 and 26: the same text as identified in record 13;
• Record 25: comments made by the Commission’s internal legal adviser on certain provisions” of the draft Bill;
• Record 28: the text in the section commencing “DPER Q2”;
• Record 29: comments made by the Commission’s internal legal adviser on certain provisions of the draft Bill;
• Record 30: details of advice sought from and provided by the Attorney General’s Office on the draft legislation;
• Record 31: comments made by the Department on certain provisions of the draft
Bill;
• Record 34: the substance of an email from the Commission’s legal adviser to the Department dated 29 April 2022 at 13:33 and the same text as identified in record 30;
• Record 37: Paragraph 1 including header, paragraphs 7 to 12, paragraph 13 including header, paragraph 20 including header, and paragraph 23 including header, in the email sent on 5 May 2022 at 12:03;
• Records 38 and 42: the same text as identified in record 37;
• Record 43: the following paragraphs in the combined response from the Department to correspondence dated 26 April 2022 and 5 May 2022 from the Commission:
o The two substantive paragraphs responding to the Commission’s email dated
26 April 2022 relating to advice provided by the Attorney General’s Office; o The second, third, fourth, fifth, sixth and seventh paragraphs responding to the Commission’s email dated 5 May 2022 relating to service of notice requirements;
o The fourth, fifth, sixth and seventh substantive paragraphs on the second page of the record relating to advice provided by the Attorney General and the Office of Parliamentary Counsel;
o The second, third, fourth, fifth, sixth and seventh substantive paragraphs on the third page of the record relating to advice provided by the Attorney General and the Office of Parliamentary Counsel
• Record 44: four paragraphs on the second page of the letter from the Minister for Public Expenditure and Reform to the Chairperson of the Commission referring to advice provided by the Department’s Legal Adviser in relation to the General Scheme of the Bill which had been published and as well as a reference to engagement with the Attorney General’s Office;
• Record 45: paragraphs 11 and 12 in an undated email from the Commission to the Department which refers to advice provided by the Attorney General’s Office as well as the same text identified in record 37 above.
Having examined the records, I am satisfied that records 5 and 36 and the redacted part of record 3 attract legal advice privilege and that section 31(1)(a) applies to those records. In relation to the remaining records, I am satisfied that section 31(1)(a) applies to all of the relevant redactions identified by the Commission as set out above, apart from the following:
• The second redaction in record 13 and the same redaction in records 16, 17, 18, 20, 22 and 26
• The first two redactions in record 30 and the same redactions in record 34
• The first paragraph responding to the Commission’s email dated 26 April 2022 in record 43, and
• The final redaction in record 44.
It is not apparent to me that the disclosure of the text in question would involve the disclosure of legal advice sought or obtained or that the redacted text comprises part of a continuum of correspondence resulting from such requests for advice.
The Commission refused access to record 1 under section 28(1)(c) of the Act. That section provides for the refusal of a request if the record sought contains information (including advice) for a member of the Government, the Attorney General, a Minister of State, the Secretary General to the Government for use by him or her solely for the purpose of the transaction of any business of the Government at a meeting of the Government.
For section 28(1)(c) to apply, the record must contain information (including advice) for a member of the Government, the Attorney General, a Minister of State or the Secretary General to the Government and this information must be for use by that person solely for the purpose of the transaction of any business of the Government at a meeting of the Government. Records covered by this exemption would include departmental briefing notes for individual Ministers attending a Government meeting. The sole reason for the creation of such records is to assist the Government in the conduct of one or more of its meetings and the record ceases to have a purposeful existence after the conclusion of the meeting.
The record at issue is a document entitled “2021 Review of the Regulation of Lobbying Act 2015”, prepared by the Department of Public Expenditure and Reform. In its initial submission to this Office, the Commission said that a copy of the report was provided to it on a confidential basis on 24 March 2022. It said the Department informed it that the report was prepared solely for Government and had not, and would not, be published. It said the Department informed it when furnishing the report that it was, at that stage, preparing a submission for the Minister seeking his approval to table a Memo to Government on the Regulation of Lobbying (Amendment) Bill seeking Government approval to publish the Bill and initiate its passage through the Houses of the Oireachtas. It said the Regulation of Lobbying (Amendment) Bill 2022 was published on 22 September 2022.
During the course of the review, the Investigator sought further details from the Commission with respect to this record. In response, the Commission forwarded detailed correspondence from an official in the Department of Finance with responsibility for the regulation of lobbying policy and legislation on the matter. I understand that responsibility for the regulation of lobbying policy and legislation transferred from the Minister for Public Expenditure, NDP Delivery and Reform to the Minister for Finance with effect from 1 March
2023 by way of S.I 89/2023 – Standards in Public Office (Transfer of Departmental Administration & Ministerial Function) Order 2023. I understand that accordingly, the relevant resources including officials also transferred to the Minister for Finance. I understand that this was intended as a temporary measure, and has now been reversed following a decision of the Government on 4 July 2023. Accordingly, while the official in question was transferred on a partial basis to the Department of Finance, the records remained within the Department of Public Expenditure, NDP Delivery and Reform on a shared services basis. The Department said this somewhat unusual scenario resulted in an official with an email address in the Department of Finance providing commentary on records held by the Department of Public Expenditure, NDP Delivery and Reform.
In that correspondence, the relevant official provided some background to the preparation of the report. She said that in September 2020, the Taoiseach announced a review of the post-term employment restrictions in the Regulation of Lobbying Act 2015 following media reports that a Minister for State had moved to work for a lobbying organization without applying to the Commission for a waiver of the one year cooling off period. She said the clear instruction to the Department was that the legislation needed to be significantly strengthened taking into account the recommendations made by the Commission in its annual reports which had been used to inform the development of two Private Members Bills. She said there was significant legal advice given by the Department’s legal adviser and the Office of the Attorney General which informed the direction of the policy in this area and which informed a number of significant trade-offs that had to be made between what was robust and enforceable and what was proportionate. She said that as a number of the recommendations arising from that analysis were not in line with what was originally requested, a detailed report was prepared for the Minister to support his discussion on the policy direction at the Cabinet table.
The official said that the record was prepared for the Minister for Public Expenditure & Reform for his use at Cabinet. She said the report was first presented to the Minister as an attachment to the submission seeking his approval of the recommendations for legislative changes to the Regulation of Lobbying Act 2015 on 1st June 2021. She said this submission set out the Department’s analysis of the policy issues that the Minister had directed it to examine, the recommendations for legislative change based on that analysis, and the underpinning policy rationale. She said the report was attached as it contained in one place the detailed information the Minister would need for a discussion at Cabinet on the changes. She said a meeting on the submission was held with the Minister at which the Minister made his decisions on the recommendations in the submission and directed that a Memo be prepared for consideration by Government before the summer break.
The official added that given the detailed legal advice from both the Department’s Legal Adviser and the Office of the Attorney General that the report contains, the review report was not submitted in full to Cabinet as an attachment to the Memo but was held by the Minister for his own use at the Cabinet meeting. She said a hard copy of the report was brought by the Minister to the Cabinet meeting on 13th July 2021. She said the material in the introductory chapter of the report which lists the recommendations and sets out a synopsis of the policy rationale was included as an appendix to the Memo seeking approval to the legislative changes. She said that Memo went to Government on 13th July 2021 where Government noted the completion of the Department’s review and agreed to the preparation of a General Scheme of amending legislation in accordance with the proposed policy changes.
Finally, the official said the report was shared with the Commission on a confidential basis specifically to share the legal advice which informed the policy direction and particularly the boundaries of what was feasible as that had been invaluable in forming the policy view.
Following her consideration of that correspondence, this Office’s Investigator sought further submissions from the Commission in relation to the requirement in section 28(1)(c) that the record at issue must contain information for the Minister for use by him solely for the purpose of the transaction of any business of the Government at a meeting of the Government. The Investigator queried whether the record is simply a report following the review of the Regulation of Lobbying Act 2015 and, as such, had a wider purpose of reporting on the outcome of the review as opposed to having been prepared solely for the Minister’s use. In addition, the Investigator sought further details from the Department as to what further use was or will be made of the report.
In response, the Department referred to its previous comments as outlined above. It said the record contained in one place the detailed advice on the policy issues that the Minister asked the Department to examine with his specified intention that these would result in amending legislation that he would (and subsequently has) brought to Cabinet for approval. It said the review report held in one place the substantial detail he would need for the discussion at the Cabinet meeting on the proposed legislative changes. It said the report did not have a wider purpose of reporting on the outcome of the review, saying instead that it was prepared for the Minister’s use and was not intended for publication or for a wider circulation.
The Department said that in practice, there is usually quite a short time frame between the meeting with the Minister on the matter and the drafting of the Memorandum for Government and it is for this reason that the report was prepared at the same time as the policy analysis. It said that from the time the review was announced, there was a clear Ministerial expectation that the review would result in amending legislation and accordingly, the review was conducted with an anticipated end of seeking Government approval for amending legislation to bring into effect any needed policy changes.
With regard to the query as to what further use, if any, was made of the report, the Department said that following the Government meeting, the report was filed. It said that the report was shared with SIPO on a confidential basis specifically to share the legal advice it contained which informed the policy direction of the amending legislation. It said it was done in this manner as it was seen as easier than collating the different pieces of legal advice as a separate exercise. It said that no future use is intended for the report.
My Analysis
The requirements that must be met for section 28(1)(c) to apply are clear. For the section to apply, the record at issue must contain information for the Minister for use by him solely for the purpose of the transaction of any business of the Government at a meeting of the Government. In my view, the Department’s response to the queries raised by this Office indicate that the sole purpose requirement has not been met in this case. While the Department indicated in its correspondence that the record was prepared for the Minister for Public Expenditure & Reform for his use at Cabinet, the relevant official specifically stated that the report was first presented to the Minister as an attachment to the submission seeking his approval of the recommendations for legislative changes to the Regulation of Lobbying Act 2015 on 1st June 2021. I further note the comment that a meeting on the submission was held with the Minister at which the Minister made his decisions on the recommendations in the submission and directed that a Memo be
prepared for consideration by Government. Accordingly, while I accept the Department’s assertion that the report was attached to the submission as it contained in one place the detailed information the Minister would need for a discussion at Cabinet on the changes, it seems to me that the information in the record was not information for the Minister for use by him solely for the purpose of the transaction of any business of the Government at a meeting of the Government. Rather, it seems to me that it first served to support the submission to the Minister seeking his approval of the recommendations for legislative changes to the Regulation of Lobbying Act 2015. In the circumstances, I find that section 28(1)(c) does not apply to the record. I would add that while the Commission did not rely on any other ground for withholding the record, I do not consider it appropriate to simply direct the release of the record at this stage. This is because I am cognisant of the
Department’s submission that the report was not submitted in full to Cabinet in light of the detailed legal advice from both the Department’s Legal Adviser and the Office of the Attorney General contained in the report. Instead, it seems to me that the most appropriate course of action is to annul the Commission’s decision in respect of record 1 and to remit that aspect of the applicant’s request back to the Commission for consideration afresh.
Of the records remaining to be considered in whole or in part, I must now consider the applicability of section 29 to records (in whole or in part) 6 to 10, 13, 15 to 31, 33 to 35, 37 to 39, and 41 to 45.
Section 29(1) provides for the discretionary refusal of a request 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 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 also met. Furthermore, the public interest test at section 29(1)(b) is a strong test. 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.
The first requirement which must be met in order for section 29(1) to apply is that the record must contain matter relating to the ‘deliberative processes’ of an FOI body. An FOI body relying on this exemption should identify both the deliberative processes concerned and any matter in particular records which relates to these processes.
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 of the Act 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 record(s) would be contrary to the public interest, e.g. by identifying a specific harm to the public interest flowing from release.
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, 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 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 submission to this Office, the Commission said that at the time of the applicant’s request, the Department had informed the Commission that while the drafting of the Regulation of Lobbying (Amendment) Bill was complete, the Government had not yet published the Bill. It said the decision to refuse the records (apart from record 33 which I will consider below) under section 29(1) was made on the basis that until the Government made a decision, the records related to an ongoing deliberative process and release would be contrary to the public interest as it would pre-empt a decision that was yet to be made by Government on the heads of the Bill.
As I have outlined above, a review by this Office is based on the circumstances and the law as they pertain at the time of the decision and is not confined to the basis upon which the FOI body reached its decision. As the relevant Bill has since been enacted, any concerns the Commission may have had about the release of the records pre-empting a Government decision have fallen away. I am aware of no reason why the release of the records would be contrary to the public interest in this case. As such, I find that section 29(1) does not apply.
On the question of the applicability of section 29(1) to record 33, which concerns the
Department’s review of ethics legislation, the Commission said that the email sets out the Commission’s high-level concerns it wished to be taken into account by the Department in the review. It said that to release the record would be contrary to the public interest as it would pre-empt a decision that is yet to be made by Government on the heads of a Bill. It said the matter remains under consideration and as of now the Government has not approved the heads of any amending legislation relating to the Ethics Acts.
I am satisfied that record 33 relates to ongoing deliberations concerning the Department’s review of ethics legislation. On the matter of whether the release of the record would be contrary to the public interest, this Office asked the Commission to explain how the release of the record would be contrary to the public interest in circumstances where it has previously published concerns about shortcomings in the current legislative regime.
In response, the Commission said that some of the issues referred to in record 33 were referred to in the Commission’s Annual Reports and in a published submission on a draft general scheme to the Minister and the Joint Oireachtas Committee on Finance, Public Expenditure and Reform in October 2015. It said a summary of that submission was included in the Commission’s 2015 Annual Report. It said that the email in record 33 was issued to the Department following a meeting between the Commission Secretariat and staff of the Department at which the latter provided details of the development of their consideration of what was to be included in the draft general scheme. It said the email sets out high level concerns on the proposals as outlined at that previous meeting and go further than what had been previously addressed in the Commission’s published observations in Annual Reports and in the submission referred to above. It provided specific examples of concerns expressed that were either not previously published or not to the same extent as contained in record 33. In relation to the question of why it considers that release of the record would be contrary to the public interest, it simply reiterated that release would pre-empt a decision on the heads of the bill that was and remains yet to be made by Government.
It seems to me that the Commission has not identified any particular harm to the public interest by the release of record 33. Rather, it appears to be seeking to protect information relating to discussions on the drafting of legislation as a class, regardless of the precise nature of the information or what harm, if any, might arise as a result of its disclosure. I accept that there are many situations where the disclosure of matter relating to an ongoing deliberative process would be contrary to the public interest, for example, where premature release of information relating to an ongoing deliberative process might prejudice or impair related ongoing negotiations or might give rise to undue interference with the process itself before a substantive policy decision has been made due to the impairment of frank and candid exchanges and considerations of related issues. No such arguments have been made in this case. I accept that the information in the record may well include issues that the Commission has not previously published to date or may contain more extensive information on matters previously published. However, it seems to me that the matters discussed remain of a relatively high level and do not appear to be unlike some previously published matters. Indeed, in the record itself, the Commission secretariat describes the concerns raised as “high level”, which it looks forward to discussing “in detail”. In all the circumstances, I am not satisfied that the Commission has satisfactorily shown that the release of record 33 would be contrary to the public interest. I find, therefore, that section 29(1) does not apply.
I find therefore that, section 29(1) does not apply to any of the records at issue, either in whole or in part.
The remaining records to which I must consider the applicability of section 30(1)(c) are as follows; records 6 to 10, 19, 21, 23, 24, 27, 33, 35, 39 and 41 and the remaining parts of records 13, 15 to 18, 20, 22, 25, 26, 28, 29, 30, 31, 34, 37, 38 and 42 to 45.
Section 30(1)(c) of the FOI Act provides that an FOI request may be refused if access to the record concerned could 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(2) provides that section 30(1) does not apply where the FOI body considers that the public interest would, on balance, be better served by granting than by refusing to grant the request.
An FOI body relying on section 30(1)(c) should identify the relevant negotiations at issue. The Oxford English Dictionary defines "negotiation" as "the action or business of negotiating or making terms with others". It goes on to define the verb "negotiate" as "to hold communication or conference (with another) for the purpose of arranging some matter by mutual agreement; to discuss a matter with a view to some settlement or compromise". Relevant factors in considering whether there is, or was, a negotiation include whether the FOI body was trying to reach some compromise or some mutual agreement. This Office also accepts that, generally speaking, proposal-type information relating to a public body's negotiations would be exempt under section 30(1)(c). 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, the FOI body’s negotiating strategy, or an opening position with a view to further negotiation.
In its submission to this Office, while the Commission made repeated references to section
30(1), it did not advance any substantive arguments with regard to its reliance on section 30(1)(c). However, it seems to me that the essence of the Commission’s position is that its exchanges of correspondence with the Department in relation to the various legislative provisions comprises negotiations for the purposes of section 30(1)(c).
Having carefully considered the matter, I am not satisfied that correspondence between a Department drafting legislation and another public body charged with overseeing and implementing aspects of such legislation can reasonably be termed a negotiation. I appreciate that the records at issue demonstrate certain differences of opinion between the parties in relation to aspects of the amending legislation. However, I consider such exchanges to form part of the normal deliberative processes which take place when Government Departments are drafting legislation and I am not prepared to accept that the Department was engaged in negotiations with the Commission.
In any event, even if I were to accept that the correspondence did relate to negotiations, I do not accept that the release of the information would involve the disclosure of a position 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 to be carried on. It appears to me from a review of the records that the negotiating position of the Commission regarding the Regulation of Lobbying Act 2015 would have been readily apparent from its submissions to both the first and second statutory reviews of the Act which had taken place in 2017 and 2019 and which are publically available.
I find, therefore, that the Commission has not justified its reliance on section 30(1)(c) as a basis to refuse access to information in the relevant records. As I have not found section 30(1)(c) to apply to any records, there is no need to consider the public interest test at section 30(2).
Having carried out a review under section 22(2) of the FOI Act, I hereby vary the
Commission’s decision. I annul its refusal of record 1 under section 28(1)(c) of the Act and I remit that part of the request back to the Commission for a fresh decision. I find that it was justified in refusing access, under section 31(1)(a) of the Act to records 5 and 36 in full and to the redacted part of record 3.
I find that it was not justified in refusing access to the remaining records in whole or in part, apart from the following text which I have found to be exempt under section 31(1)(a) of the Act:
• Record 13: all redacted text apart from the second redaction and the same text redacted from records 16, 17, 18, 20, 22, and 26;
• Record 15: certain text included in the column headed “SIPO Comment 30/3” on pages 1, 4, and 8;
• Record 25: comments made by the Commission’s internal legal adviser on certain provisions” of the draft Bill;
• Record 28: the text in the section commencing “DPER Q2”;
• Record 29: comments made by the Commission’s internal legal adviser on certain provisions of the draft Bill;
• Record 30: all redacted text apart from the first two redactions
• Record 31: comments made by the Department on certain provisions of the draft
Bill;
• Record 34: all redacted text apart from the first two redactions in the email dated 26 April 2022 at 18:19
• Record 37: Paragraph 1 including header, paragraphs 7 to 12, paragraph 13 including header, paragraph 20 including header, and paragraph 23 including header, in the email sent on 5 May 2022 at 12:03;
• Records 38 and 42: the same text as identified in record 37;
• Record 43: all redactions apart from the first paragraph responding to the Commission’s email dated 26 April 2022; and
• Record 44: all redactions apart from the final redaction.
• Record 45: paragraphs 11 and 12 in an undated email from the Commission to the Department which refers to advice provided by the Attorney General’s Office as well as all paragraphs as outlined in record 37 above.
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 applicant 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.
Stephen Rafferty
Senior Investigator