Decision
Mr Z and An Coimisiún Toghcháin
From Office of the Information Commissioner (OIC)
Case number: OIC-146889-F6Y9Y6
Published on
From Office of the Information Commissioner (OIC)
Case number: OIC-146889-F6Y9Y6
Published on
22 January 2025
An Coimisiún Toghcháin (An Coimisiún)/the Electoral Commission is a statutory, independent body, established on 9 February 2023 with responsibility for a broad range of electoral functions set out in the Electoral Reform Act 2022. On 30 August 2023, it published a Constituency Review Report in which it set out various recommendations in respect of Dáil constituencies and European constituencies.
On 8 January 2024, the applicant submitted a request to An Coimisiún for all records held relating to the deliberations and decisions made in the course of its 2023 review of constituencies, insofar as they relate to the Dáil constituency of Cork East. In a decision dated 2 February 2024, An Coimisiún refused access to all 14 records it identified as relevant to the request, under sections 29(1), 30(1)(a) and 30(1)(c) of the FOI Act. The applicant sought an internal review of that decision on 6 February 2024 following which An Coimisiún affirmed its refusal of the request. On 29 February 2024, the applicant applied to this Office for a review of An Coimisiún’s decision.
During the course of the review, in its submissions to this Office, An Coimisiún also referenced section 41(1) of the FOI Act and section 11(9) of the Electoral Reform Act as a further basis for refusing the request.
I have now completed my review in accordance with section 22(2) of the FOI Act. In carrying out my review, I have had regard to the submissions made by the applicant and by the Electoral Commission. I have also had regard to the contents of the records at issue. I have decided to conclude this review by way of a formal, binding decision.
From the wording of the internal review decision, the applicant and the Investigator both understood that An Coimisiún was no longer relying on section 30(1)(a). However, following a request for clarification, An Coimisiún said that while it did not specifically reference section 30(1)(a) in the internal review decision, by affirming the original decision it was essentially affirming the reliance on all exemptions in that decision. It said its position was that the records were exempt under sections 29(1), 30(1)(a) and 30(1)(c). As I have indictaed above, it also referred to section 41(1) as a further basis for refusing the request.
The Investigator put it to An Coimisiún that the applicant had emphasised in his submissions that he was seeking only records in respect of Cork East and that this could narrow the scope of the review to just those records or parts of records that contained specific references to Cork East. In response, An Coimisiún said that constituency reviews are approached in the round, and while papers and maps with regard to options for particular constituencies may be prepared to help to inform the deliberations of the Commission, these are intrinsically linked to considerations already undertaken, or to be undertaken in respect of other constituency options. It said that to release tracts of text from papers that are broad in scope would remove the context-setting piece and would be of limited public benefit.
In the circumstances, I will consider whether An Coimisiún was justified in refusing access, under sections 29(1), 30(1)(a), 30(1)(c) and/or 41 of the FOI Act, to the 14 records listed on the schedule prepared by An Coimisiún when processing the request.
Section 9(4)(a) of the Electoral Reform Act 2002 provides that the Ombudsman shall be a member of the Electoral Commission. The Ombudsman is also the Information Commissioner. The FOI Act contains no specific provisions for carrying out a review where the Information Commissioner himself is potentially an affected party. In the circumstances, I confirm that I have conducted the review and made the decision on it with no involvement by, or consultation with, the Commissioner.
The records at issue
Record 1 is an Excel spreadsheet containing a population breakdown of each constituency by region, with seat breakdown and variances by potential number of total seats. Record 2 is an options paper for Cork constituencies, dated 25 April 2023. Records 3 – 7 are maps with different options for Cork, all dated 25 April 2023. Record 8 is a summary constituency options paper, dated 1 June 2023. Record 9 is an options paper for the Cork region, dated 1 June 2023. Records 10 to 12 are all further maps of the Cork region showing various options. Record 13 is a paper dated 6 July 2023 with a further consideration of constituencies. Record 14 is a draft Constituency Review Report dated 20 July 2023.
Section 41: Enactments relating to non-disclosure of records
Section 41(1)(a) of the FOI Act provides for the mandatory refusal of a request if the disclosure of the record sought is prohibited by law of the European Union or by an enactment which is not listed in Schedule 3 to the FOI Act. In essence, the non-disclosure provision overrides any right of access under FOI, unless that particular provision is specified in Schedule 3. This Office considers that for section 41(1)(a) to apply, a provision must exist that explicitly prohibits the release of the records, that is clear in its meaning and effect, and that can be interpreted only as prohibiting disclosure of the information in question.
In its submissions, An Coimisiún referred to section 11(9) of the Electoral Reform Act 2022 which provides that:
“No person shall, without the consent of the Commission, disclose to any person any information obtained while serving as a member of the Commission or providing services to the Commission.”
It said that this provision is not specified in column (3) of Part 1 or Part 2 of Schedule 3 of the FOI Act and argued that, pursuant to section 41(1)(a), An Coimisiún is therefore exempt from releasing any record the disclosure of which is prohibited under section 11(9) of the 2022 Act. It said that under section 11(9), the disclosure of any record obtained by any member of An Coimisiún or any provider of services to An Coimisiún is prohibited, except where An Coimisiún consents to its disclosure and that it does not consent to the disclosure of the records that have been refused in this request.
Having carefully considered the wording of section 11(9), I am not satisfied that it serves as an outright prohibition on the release of records, such that section 41(1)(a) would apply and that the request would have to be refused. Rather, it seems to me that section 11(9) is essentially an anti-leaking provision. It serves to prevent individuals who obtained information while serving as members of An Coimisiún, or while providing services to An Coimisiún, from disclosing that information without the permission of An Coimisiún as a whole. Accordingly, I do not accept that section 11(9) prohibits the release of records further to an FOI request, and I find that section 41(1)(a) does not apply.
While An Coimisiún’s arguments on the applicability of section 41(1) focused solely on section 41(1)(a), I will, for the sake of completeness, go on to consider the applicability of section 41(1)(b). This section provides that a request must be refused if the non-disclosure of the record is authorised by any such enactment (any enactment other than a provision specified in column (3) of Part 1 or 2 of Schedule 3 of an enactment specified in that Schedule) in certain circumstances and the case is one in which the head would, pursuant to the enactment, refused to disclose the record.
Section 11(9) applies only to specified categories of persons, i.e. individuals who obtained information while serving as members of An Coimisiún, or while providing services to An Coimisiún. It does not prohibit the disclosure of information pursuant to an FOI request by a member of the staff of An Coimisiún or the CEO (being the head of the body for the purposes of the FOI Act). On this point, I note that section 11(9) is located in a section of the 2022 Act entitled ‘Terms and conditions of appointment of members of the Commission’, which deals specifically with matters pertaining to the persons appointed to be members of the Commission. On the other hand, section 17 of the 2022 Act is concerned with the terms and conditions of service of staff members of An Coimisiún. It provides that “The terms and conditions of service of a member of staff of the Commission, and the grade at which he or she serves, shall be such as may be determined by the Commission, with the consent of the Minister for Public Expenditure and Reform”. If it was intended that section 11(9) should apply to the disclosure of information by the staff of An Coimisiún, including pursuant to an FOI request, I would expect the provision to say so. Moreover, it seems to me that if the Oireachtas had intended that records relating to the core functions of An Coimisiún should be exempt from release under the FOI Act, it would have been open to it to include An Coimisiún in Schedule 1 of the FOI Act as a partially included agency or restrict the application of the Act to particular records pursuant to section 42. It did not do so. In sum, therefore, it is not apparent to me, and nor has the case been made by An Coimisiún, that section 11(9) serves as authorisation for the non-disclosure of records pursuant to an FOI request. I find that section 41(1)(b) does not apply.
Section 29: Deliberations of FOI bodies
Section 29(1) of the Act provides for the discretionary refusal of a request if (a) the record contains matter relating to the deliberative processes of an FOI body and (b) granting the request would be contrary to the public interest. Section 29 also provides 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. Subsections (a) and (b) 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 public bodies to show to the satisfaction of the Commissioner that both requirements are met. The exemption does not apply in so far as the records contain any of the information or matter referred to in section 29(2). Thus, where an FOI body is relying on section 29(1) for the refusal of a record, it must go on to consider whether section 29(2) applies in relation to the record concerned.
Submissions from An Coimisiún
In submissions to this Office, An Coimisiún said that the records at issue were used as part of the complex deliberative processes of An Coimisiún in arriving at its recommendations to the Oireachtas on the revision of Dáil and European constituencies. It said that there is no defined procedure for making these recommendations and that they are achieved through weighing up options relating to geographical and population factors and making judgements in relation to potential impacts for the electorate. In addition, it said that there are a number of constitutional and statutory parameters which must be taken into account in this deliberative process, including Article 16 of the Constitution and sections 56-59 of the Electoral Reform Act 2022. It noted that the legislation requires it to lay its constituency review report before the Houses of the Oireachtas no later than three months after the publication of final census data. It said that, for these reasons, the deliberative process involved in a constituency review is complex and time-bound, and involves reviewing relevant population and geographical factors within the terms of reference set, and making judgements on potential impacts for the electorate of the various options in play. It said that the withheld records informed frank and open conversations by members of An Coimisiún regarding these options, and gradual progression towards final, agreed decisions on the redrawing of constituency boundaries.
An Coimisiún said that while the 2023 constituency review has been completed, the methodology used in this instance may be used in further reviews and can therefore reasonably be described as an ongoing deliberative process. It said that there is no fixed process in place as to how a constituency review is carried out, and that there is no precedent for the release or publication of options considered in the redrawing of constituency boundaries. It said that it requires the flexibility to keep all options and deliberations available for future reviews and that by withholding the relevant records in this case, An Coimisiún is protecting its ‘thinking processes’ and its ability to effectively deliver on its statutory functions for the Government and the public within the statutory deadline. It said that release of the records could adversely impact An Coimisiún’s ability to conduct similar reviews within the required deadlines, which would constitute a public harm.
An Coimisiún said that it was of the view that section 29 represents a clear acceptance of the fact that there will be occasions where 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 contrary to the public interest. Furthermore, it said that the thought processes around how decisions were reached and the variety of options considered were already set out in some detail in the published Constituency Review Report. It pointed to the fact that the submissions received during the course of the review were published, and that there were a number of public engagements following publication at which the rationale of An Coimisiún in reaching its decision was set out, and interrogated by the media and by academics.
An Coimisiún said that it concluded that while increased transparency might generally be in the public interest, in this instance, release of the records concerned would, at most, only be in the public interest in a very limited manner. It said that releasing option papers which were considered by An Coimisiún, but which present a direction which An Coimisiún ultimately decided not to pursue for this electoral review process, without any other information to explain why one option was favoured over another, would be of limited benefit to the public.
It referred to the Supreme Court decision in The Minister for Communications, Energy and Natural Resources and the Information Commissioner & Ors [2020] IESC 57, (‘the Enet judgment’) where it was held 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.”
An Coimisiún then identified three specific factors which it considered as indicating that release would be contrary to the public interest: harmful speculation, inevitable impact on stakeholders, and nationwide impact of option papers.
In respect of harmful speculation, it said that release under FOI must be taken as release of the record to the public at large and that it was necessary to consider how the records could be misunderstood, misconstrued and potentially misleadingly cited in support of unsubstantiated claims or allegations by member of the public. It said that they could be cited (misleadingly) as indicating that An Coimisiún did not act fairly when producing the Constituency Review Report, for example because it allegedly favoured certain candidates and/or parties. It noted that, having regard to developments in other jurisdictions, the questioning or denial of the legitimacy of election processes can result in great public harm. Furthermore, it said that in the context of increasing use of various online forums which allow members of the public to circulate and amplify political disinformation and misinformation, the risk of the release of these records leading to harmful speculation and commentary is foreseeable and clearly contrary to the public interest.
An Coimisiún said that release of the records would have an impact on a wide variety of stakeholders. It said that for every constituency review, regardless of which option An Coimisiún ultimately decides on, there are inevitable political, financial, legal and constitutional implications. It said that it was important that An Coimisiún was in a position to fully consider all options in respect of substantive policy positions, without interference. It said that certain options considered by An Coimisiún could have a particularly large impact by affecting several constituencies and large portions of the population. It said that releasing the records, even when related to a decision already made, could result in harmful speculation and commentary regarding how An Coimisiún operates and that this could result in inappropriate interference with, and express and implied pressure being applied to, members of An Coimisiún. It said that it was in the public interest that decision-makers are granted the space to deliberate freely and without such interference or pressure.
An Coimisiún said that while the FOI request was limited to records relating to the constituency of Cork East, the review of any one constituency cannot be viewed in a vacuum as options considered for one will have a knock-on effect on others, and that this is part of the complexity of the process. It acknowledged that this Office was generally of the view that the possibility of information being misunderstood was not a good reason to refuse access to records under an FOI request. However, it said that the release of records in this instance does not just raise the possibility of the information contained in the records being misunderstood specifically in relation to the constituency of Cork East but would lead to a risk of misunderstanding the facts considered by An Coimisiún in relation to all constituencies when conducting a constituency review.
Overall, An Coimisiún said that it concluded that it would be contrary to the public interest to release the withheld records. It said that while it appreciates the public’s interest in understanding why An Coimisiún may amend constituencies from time to time, its decision-making powers must be viewed in light of its constitutional and statutory obligations and restrictions. It said that it must have the ability to analyse options for each constituency and how any particular change to any particular constituency can affect a neighbouring constituency, or several constituencies across the country, in private. It said that it was in the public’s interest that An Coimisiún can consider all options without any inappropriate potential influence or speculation from the public, especially when the factors to be considered are relatively complicated and multi-faceted. It said that the public interest in understanding why An Coimisiún makes recommendations for constituency changes is adequately addressed by the publication of a Constituency Review Report, which includes explanations for recommended changes. It said that taking into account the potential harms that would arise from releasing records containing specific options considered by An Coimisiún, as outlined above, it is clear that the public interest in such records being withheld strongly outweighs the public interest in their release, to the extent that it would be contrary to the public interest to release them.
An Coimisiún said that section 29(2) did not apply to any of the records. Specifically in relation to section 29(2)(b), factual information, it said that while the records that were withheld do include factual information relating to constituency population densities, growth and geographical considerations, it said that they are intrinsically linked to constituency boundary options provided on the basis of this information, and the impacts of decisions relating to these options, such as transfers of electoral districts between constituencies, variances in representation and boundary breaches
Submissions from the applicant
The applicant highlighted that in order for section 29(1) to apply, it must be shown that the granting of the request would be contrary to the public interest. He said that it was not a blanket exemption, and that the overriding public interest applies. He said that it was entirely reasonable that the ‘thinking process’ of an important public body carrying out important public functions in an independent and impartial way should not be cloaked in secrecy.
The applicant said that the ‘contrary to the public interest’ test requires that the decider should be able to identify harm. He said that the argument that release would ‘potentially cause a substantial interference with or disruption to the work of An Coimisiún resulting in the inability to dedicate sufficient time to consider all factors in relation to each constituency’ was entirely speculative. He said that if the records are released, ‘all options and deliberations’ will still be available to An Coimisiún for future reviews.
The applicant said that the recommendations from the report of the Constituency Review Report 2023 have been implemented in law so no harm can arise. He said that, as required under Section 56 of the Electoral Reform Act, a review of constituencies has been carried out after the Census, and with regard to the provisions provided for in Section 57. He said that no process is underway, it has completed, and that a report has been presented and implemented without change. He said that in fact, the thinking processes of An Coimisiún have been outlined in the report, and in public commentary since. He submitted that release of the records would add to that public understanding.
The applicant went on to say that when the legislation to establish An Coimisiún was passed through the Oireachtas, no requirement was provided that the internal records of An Coimisiún relating to the consideration of constituency boundaries should remain secret. He said that An Coimisiún was given provisions it must have regard to, and that while it may not like that records will be released, it was not precluded in law.
The applicant argued that the public have a right to know the methodology applied by An Coimisiún in arriving at the boundaries it reported. He said that this will, if anything, ensure future submissions are more informed, rather than result in an adverse impact on debate and discussion around future reviews. He said that An Coimisiún should be able to stand over its report and conclusions.
Citing the decision letters issued to him, the applicant said that An Coimisiún on the one hand said it wanted to protect the ‘thinking processes’ in the matter of constituency boundaries, yet also stated that the report provides ‘the historical context, the reasons etc’ and that submissions are also available. He said that he had specifically sought records pertaining to Cork East and that no explanation was provided in the Report as to the reasons for the extensive changes made to the Cork East constituency. The applicant said that the public have a right to know what processes are being used in determining constituency boundaries.
In summary, the applicant said that the deliberative process is over, a decision has been made, published, and implemented in law. He said that An Coimisiún has not outlined how the granting of the request would be contrary to the public interest. Rather, he said release of the records would instead inform future discussions around future reviews.
Analysis
Section 29(2)
As section 29(2) provides that section 29(1) does not apply to records falling within certain categories, having regard to the content of the records at issue here I consider it appropriate to first examine the applicability of 29(2).
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.
An Coimisiún’s position is that none of the above apply to the records. I accept that subsections (a), (c), (d) and (e) do not apply. However, in respect of some of the records, it seems to me that they do, indeed, contain factual information such that section 29(2)(b) must be carefully considered.
Factual information is defined in section 2 of the Act as including “information of a statistical, financial, econometric or empirical nature, together with any analysis thereof”. This Office takes the approach 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. This Office regards factual information as including material presented to provide a factual background to the central topic in a record and that factual information is distinguishable from information in the form of proposal, opinion or recommendation.
As noted, while An Coimisiún accepted that the records do include some factual information, it was of the view that this information is intrinsically linked to constituency boundary options and the impacts of decisions relating to these options.
Record 1 is an Excel spreadsheet containing a containing a population breakdown of each constituency by region, with seat breakdown and variances by potential number of total seats, for each of the options from 171 to 181 seats that the Electoral Reform Act 2022 specifically provides for. I find this to fit squarely within the definition of factual information such that section 29(2)(b) applies and therefore section 29(1) cannot apply to this record.
With respect to the other records, particularly those records that consist of maps, it seems to me to be a close call. On balance, I am prepared to accept An Coimisiún’s position that while they all contain substantial amounts of statistical information and statistical analysis, that this is within the context of a broader analysis of the available options and proposals. I find that section 29(2)(b) does not apply to records 2-14. I will therefore go on to consider whether section 29(1) applies to these records.
Section 29(1)
A ‘deliberative process’ as envisaged by section 29(1)(a) 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.
Having carefully considered the remaining records and the submissions, I accept that they each contain matter relating to the deliberative process of an FOI body, i.e. they all relate to the Constituency Review 2023 carried out by An Coimisiún, a process which involved detailed analysis of population data and consideration of various options, having regard to the specific factors it is required to take into account as set out in section 57(2) of the Electoral Reform Act. The process culminated in the publication of An Coimisiún’s report in August 2023 recommending, among other things, an increase in the total number of TDs from 160 to 174, and increasing the number of constituencies from 39 to 43. I accept that section 29(1)(a) applies to the records concerned. I must therefore consider whether section 29(1)(b) also applies.
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 FOI Act, which require that, on balance, the public interest would be better served by granting than by refusing to grant the request. The public interest test in section 29(1)(b) requires the FOI body to show that the granting of the request would be contrary to, or against, the public interest. Where a body wishes to rely on section 29(1) to refuse access to records, this Office expects it to be in a position to explain how release of the records would be contrary to the public interest. Generally speaking, this requires a body to identify a specific harm to the public interest flowing from release. While there is nothing in section 29 itself which requires the deliberative process to be ongoing, the question of whether it is ongoing or not may be relevant to the issue of the public interest. What I must consider is whether release at this point in time is contrary to the public interest.
In this case, the deliberative process has concluded, and in fact the recommendations have been accepted by the Oireachtas with the first general election having been held for the increased number of TDs and on the basis of the amended constituencies. In these circumstances, it cannot be said that release of the records would be contrary to the public interest by reason of the fact that the applicant would thereby become aware of a significant decision that the body proposes to make.
I have carefully considered An Comisiún’s arguments above, and the contents of the records at issue. I would note, firstly, that this Office has accepted that, in exceptional cases, arguments about frankness and candour may be sustainable in the context of section 29(1)(b). However, we have also emphasised that arguments about inhibiting frankness and candour must be supported by the facts of the case, and the specific harm to the public interest flowing from that inhibition must be identified. In this case, it has been stated that the withheld records “informed” frank and open conversations regarding the available options that gradually progressed towards a final decision and that An Coimisún must be in a position to consider all options without interference or pressure being applied to decision-makers. While I do not dispute this, it seems to me that the records themselves do not disclose the details or nature of these conversations and indeed An Comisiún said in the submissions that such discussions were not recorded in minutes. At most, the draft report may disclose some differences between draft and final recommendations but not, for example, which members were in favour of which approach to take, or the nature of the discussions that led to any changes. An Comisiún engaged with the wider public through a consultation process and details of the various positions that were advocated for were published, with a comment from An Coimsiún in respect of each key point made. Overall, I am not satisfied that An Comisiún has explained, and nor is it apparent to me, how the release of these records could be contrary to the public interest by inhibiting such discussions and conversations in the future or by leading to undue interference in its processes.
In respect of the argument that release of the records could have an adverse impact on An Comisiún’s ability to conduct future reviews, within the statutory deadline, by essentially revealing its methodologies and thinking processes, again it has not been explained how the release of these particular records could have this negative impact. The fact that there is no precedent for the release of such records is not, it seems to me, a relevant consideration. The factors that An Comisiún must have regard to in carrying out a review are prescribed in the Electoral Reform Act, at section 57(2), and the final published report notes the reliance on census data from the Central Statistics Office and the mapping expertise of Tailte Eireann. A summary of submissions received was also published. Overall, it has not been explained, and nor is it evident to me from looking at the content of the records, how their release could negatively affect An Comisiún’s ability to be flexible or to keep options open in term of processes to be used in future reviews.
In terms of the argument made about the limited benefit to increased transparency by releasing details of options considered but ultimately not selected without further explanations as to why, this is not the test at section 29(1)(b); release must be contrary to the public interest. Similarly, the eNET judgment referenced by An Coimisiún concerned the application of a public interest balancing test and did not involve a consideration of when release might be contrary to the public interest.
An Comisiún expressed concern that the release of records could give rise to harmful speculation due to records being potentially misunderstood, misconstrued, or misleadingly cited in support of unsubstantiated claims or allegations by members of the public. Furthermore, it raised specific concerns about the use of online forums to circulate and amplify political disinformation and misinformation which would be contrary to the public interest, and that pressure could be applied to members of An Comisiún. I do not dispute that the spreading of disinformation and misinformation is contrary to the public interest, or that it is in the public interest that decision-makers are granted the space to deliberate freely. However, this Office does not generally accept that the possibility that released information will be used in some particular way, or will be misinterpreted, or will not be properly understood, is a valid reason for refusing access to the information, and nor does the FOI Act provide for the withholding of information on such grounds. Apart from anything else, such arguments appear to be based on an assumption that public bodies are incapable of explaining their records to the public and are unable to present information to the public in a way which will allow any objective observer to draw accurate and balanced conclusions.
On this point, I note that An Comisiún has expressly acknowledged that the thought processes around how decisions were reached and the variety of options considered were already set out in some detail in the published Constituency Review Report, that the submissions received during the course of the review were published, and that there were a number of public engagements following publication at which the rationale of An Coimisiún in reaching its decision was set out, and interrogated by the media and academics. In such circumstances, the potential for the records at issue being misunderstood or misconstrued is, in my view, significantly diminished.
Furthermore, it seems to me inevitable that public officials run the risk of unjust attack in relation to aspects of the performance of their public duties but it is not apparent to me how release of these specific records could reasonably be expected to lead to such attacks. In fact, it seems to me that it might be argued that refusing to release the records could potentially lead to more speculation than actually releasing them, where it could be perceived that there was something being hidden from the public. Overall, I am not satisfied that release of these records would be contrary to the public interest by leading to harmful speculation and/or the spreading of misinformation or disinformation.
Finally, in respect of the argument that release of the records could lead to a risk of them being misunderstood not just in relation to the constituency of Cork East, but also in relation to all the constituencies, I note that An Coimisiún declined the suggestion that the scope of the review be narrowed to just those records or parts of the records that specifically refer to Cork East. While I completely accept that decisions made in respect of one constituency are not made in a vacuum, it seems to me to be a circular argument to refuse to limit the records to only those relating to Cork East and then effectively refuse to release those records because they would also disclose information relating to other constituencies. Notwithstanding that, I have already addressed the argument with respect to the potential misunderstanding of records released, and did not accept that it had been shown that release would be contrary to the public interest on this basis.
Overall, therefore, I am not satisfied that it has been established that release of the records would be contrary to the public interest and I find that section 29(1)(b) does not apply. I find, therefore, that the records are not exempt under section 29(1).
Section 30: Functions and negotiations of FOI bodies
Section 30(1) of the FOI Act protects certain records relating to the functions of FOI bodies. An Coimisiún has relied on subsections (a) and (c) in support of its refusal to release the records at issue. The exemption is subject to a ‘public interest override’ i.e. even where the requirements of subsection (1) have been met, the exemption does not apply where the public interest would, on balance, be better served by granting access than by refusing to grant the request.
Section 30(1)(a) provides that an FOI request may be refused if the FOI body considers that access to the record concerned could reasonably be expected to prejudice the effectiveness of tests, examinations, investigations, inquiries or audits conducted by or on behalf of an FOI body or the procedures or methods employed for the conduct thereof. Where an FOI body relies on this provision, it should identify the potential harm in relation to the relevant function specified in paragraph (a) that might arise from disclosure and, having identified that harm, consider the reasonableness of any expectation that the harm will occur.
Section 30(1)(c) provides for the refusal of a request where the FOI body considers that 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. It is important to note that this exemption does not contain a harm test (unlike section 30(1)(a)) and it is sufficient that access to the record concerned could reasonably be expected to disclose such negotiation positions, plans etc. This Office takes the view that an FOI body seeking to refuse access to information under section 30(1)(c) should identify the relevant negotiations at issue. 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. The Commissioner also accepts that, generally speaking, proposal-type information relating to a public body's negotiations would also be exempt under section 30(1)(c).
Submissions from An Coimisiún
An Coimisiún said that it understood section 30 to be all about protecting the public body’s ability to carry out certain functions without ‘undue intrusion’. It said that because it is a ‘harm-based’ exemption it is not the content of the record that is at issue, rather the harm that may occur if it is released. It said that release of the records in this case would negatively impact the effectiveness and independence of any future constituency reviews An Coimisiún may have to engage in.
With respect to section 30(1)(a), An Coimisiún effectively said that the carrying out of constituency reviews, as prescribed by section 56 of the Electoral Reform Act, and taking into account the factors set out in section 57 of the Act, should be considered an investigation or examination as referenced in section 30(1)(a) and that its effectiveness was likely to be prejudiced by the release of these records.
Similar to the arguments in respect of section 29, it said that release of the records was likely to result in harmful speculation and commentary which could result in inappropriate interference with, and express and implied pressure being applied to, members of An Coimisiún. It said that An Coimisiún needs to be able to act with complete independence, and without being subjected to inappropriate pressure or influence and that anything that may negatively impact on An Coimisiún’s ability to do this could reasonably be expected to prejudice the effectiveness of the performance by An Coimisiún of these functions.
Again, it said there is no fixed process in place as to how a constituency review is carried out by An Coimisiún and that it requires the flexibility to keep all options available for future reviews without undue delay or intrusion. It said that just because a certain option was not pursued in one review does not mean that a similar option will not be pursued in the future, or that it may not be pursued in the future but for different reasons.
It said that given the levels of public, media and political interest in the 2023 constituency review, including 556 submissions received and numerous queries following publication, it was of the view that the concerns outlined above could reasonably be expected to occur.
With respect to section 30(1)(c), An Coimisiún said that while there is no fixed process in place as to how a constituency review is carried out, it requires the flexibility to keep all options available to it for future reviews to enable it to form decisions, in the public interest, without undue intrusion. It said that “these negotiations, of which the release of the records could disclose, could significantly impact An Coimisiún’s ability to arrive at an agreement on any future constituency reviews”.
It said that the only FOI body involved in the negotiations carried out during the course of the constituency reviews in question was An Coimisiún Toghcháin. It said that by withholding the records, it was protecting the ‘thinking processes’ and indeed the discussions and negotiations that took place both within An Coimisiún and by the Commission members, in the matter of constituency boundaries in order to reach agreement on the newly drawn boundaries which enabled An Coimisiún to effectively deliver on its statutory functions for the Government and the public, within its statutory deadline. It said that release of the records could adversely impact An Coimisiún’s future negotiating position and ability to conduct similar reviews within the deadlines afforded, which would constitute a public harm.
It said that while the constituency reviews were undertaken in 2023, all the activities of formulating, considering, weighing up, advising and indeed the negotiations of the Commission and staff from An Coimisiún in reaching agreement on issues pertaining to constituency reviews will be used in future reviews and, having considered the contents of the records, it believed there was a real risk that their release could reasonably be expected to result in having an adverse impact on the debate, discussion and the reaching of consensus around future reviews.
Submissions from the applicant
As noted previously, the applicant understood from the internal review letter that An Coimisiún was only relying on section 30(1)(c) and not 30(1)(a), and he made submissions on section 30(1)(c) only.
He noted that section 30 is a discretionary exemption. He disputed An Coimisiún’s assertion that the review process involved negotiations. He said that it did not negotiate when it came to redrawing constituency boundaries and that this was not part of its statutory mandate. He said that if there was negotiation on the boundaries with anyone, then this was arguably breaking the law.
With respect to the harms anticipated, the applicant said that the work has been completed, published, and legislated for and he did not accept that future harm could conceivably occur. In fact, he argued that release of the records would help inform future processes.
Analysis
Section 30(1)(a) is what is known as a harm-based provision. I note An Coimisiún’s argument that with respect to this exemption it is not the content of the record that is at issue, but rather the harm that may occur if it is released. While an FOI body wishing to rely on section 30(1)(a) to refuse access to a record should identify the potential harm in relation to the relevant function specified in paragraph (a) that might arise from disclosure, this is not to say that the content of the record is not relevant. Rather, the FOI body should show how release of the record itself could reasonably be expected to cause the harm envisaged, i.e. it should show the link between granting access to the record concerned and the harm identified. It should do this by reference to the specific record being considered for release: what is it about the particular record or the particular information in the record which, if released, could reasonably be expected to cause the harm envisaged? A general prediction without any supporting evidence is not sufficient to satisfy the requirement that access to the record could reasonably be expected to result in the outcome envisaged. Indeed, in the eNet judgment referenced above, when considering the presumption in section 22(12)(b) of the Act which places the onus on the FOI body of satisfying the Commissioner that a decision to refuse a request was justified, the Supreme Court found that “any refusal to disclose must be fully reasoned and sufficiently coherent, fact specific, and logically connected to the document or record such that the justification is sufficient”.
The harms set out by An Coimisiún in respect of section 30(1)(a) are essentially the same as those put forward under section 29. While I am willing to accept that a constituency review carried out by An Coimisiún can reasonably be characterised as an examination for the purposes of section 30(1)(a), I am not satisfied that it has been established that the release of the records at issue can reasonably be expected to prejudice the effectiveness of such an examination, or the methods employed for it. Having regard to the content of the records and the submissions put forward, I cannot see how their release could reasonably be expected to result in inappropriate interference in any future constituency review process or negatively affect its independence. Neither has it been explained how release of the records could prejudice the methods used for the review process by reducing the options available to it in the future; this has not been explained by An Coimisiún, with reference to the contents of the records, and nor is it apparent to me. I am not satisfied that section 30(1)(a) applies.
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. As noted above, this exemption does not contain a harm test (unlike section 30(1)(a) and 30(1)(b)). It is sufficient that access to the record concerned could reasonably be expected to disclose such negotiation positions, plans etc.
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. The Commissioner also accepts that, generally speaking, proposal-type information relating to a public body's negotiations would also be exempt under section 30(1)(c).
An Coimisiún’s position appears to be that the internal discussions that took place during the constituency review process should be considered negotiations for the purposes of section 30(1)(c). While I do not doubt that there may have been differing views held by different individuals during the process, and it has already been accepted that this process could be characterised as a deliberative process (for the purposes of section 29(1)(a)) or an examination (for the purposes of section 30(1)(a)), it seems to me that, having regard to the plain and ordinary meaning of the word negotiation, it cannot reasonably be characterised as a negotiation. The Electoral Reform Act requires An Coimisiún to carry out a constituency review and to prepare a report for the Oireachtas setting out its recommendations. It is not required to reach some kind of mutual agreement or settlement with another party, an FOI body or otherwise, but simply to put forward its own recommendations. In these circumstances, I find that section 30(1)(c) cannot apply.
As I have found neither section 30(1)(a) nor 30(1)(c) to apply, there is no need to consider the public interest arguments under section 30(2). I find that the records are not exempt under section 30 of the FOI Act.
Having carried out a review under section 22(2) of the FOI Act, I hereby annul the decision of An Coimisiún Toghcháin. I find that it has not justified its decision to refuse access, under sections 29, 30 or 41 of the FOI Act, to the records at issue, and I direct their release.
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