Decision
Mr [JM] and the Department of Justice and Equality (FOI Act 2014)
From Office of the Information Commissioner (OIC)
Case number: 170138
Published on
From Office of the Information Commissioner (OIC)
Case number: 170138
Published on
Whether the Department was justified in its decision to refuse the applicant's request for records of certain correspondence between Muintir na Tire and the Department, and correspondence with any other Government department or agency concerning Muintir na Tire and its activities.
Conducted in accordance with section 22(2) of the FOI Act by Stephen Rafferty, Senior Investigator, who is authorised by the Information Commissioner to conduct this review
20 December 2017
On 17 November 2016, the applicant sought access to copies of all correspondence between Muintir na Tíre (Muintir) and the Department covering all aspects of programmes funded by the Department and managed by Muintir for the period 1 January 2014 to 17 November 2016, to include copies of correspondence with any other Government department or agency concerning Muintir and its activities.
In its decision of 6 February 2017, the Department identified 39 records as coming within the scope of the request. It granted access to 25 records in full, two records in part and refused access to 12 records. The applicant sought an internal review of the decision to refuse access to the 12 records on 18 February 2017, following which the Department affirmed the original decision. On 23 March 2017, the applicant sought a review by this Office of the Department's decision to refuse access those records.
In conducting this review, I have had regard to the submissions of both the applicant and the Department and to the correspondence between this Office and both Muintir and An Garda Síochána (AGS) with whom this Office consulted in relation to the records at issue. I have also had regard to the contents of the records identified by the Department as coming within the scope of the FOI request.
I have decided to conclude the review by making a formal, binding decision. In referring to the records at issue, I have adopted the numbering system used by the Department in the schedule of records it prepared in response to the applicant's request.
Access was initially refused to records 18, 20, 21, 29, 30, 31, 32, 33, 34, 36, 37 and 38. During the course of the review, the Department agreed to grant access to records 34 and 38 in full and to grant partial access to records 29, 31, 32, 33, 36 and 37. The Department relied on sections 29(1), 35(1)(a), 36(1)(b), 36(1)(c), and 37(1) for withholding the remaining information.
This review is therefore concerned solely with whether the Department was justified in refusing access to records 18, 20, 21 and 30, and in granting only partial access to records 29, 31, 32, 33, 36 and 37.
During the course of the review, the Department revised its position in relation to the exemptions on which it was relying in the case of certain records, in its submission of 27 September 2017. I have addressed the Department arguments for exemption having regard to that revised position. In considering the Department's arguments, I have had regard to the provisions of section 22(12)(b) which require the Department to satisfy this Office that its decision to refuse access was justified.
Section 29(1) - Deliberative process
While the Department initially refused access to all 12 records under section 29, it is now relying on the exemption to withhold certain information from records 32, 33, 36, and 37. Section 29(1) provides that a request may be refused 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), and (b) the body considers that granting the request would be contrary to the public interest. These two requirements are independent. The fact that the first is met carries no presumption that the second is also met. It is therefore important for FOI bodies to satisfy this Office both that requirements have been met.
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.
In its submission of 9 June 2017, the Department argued that the records contain information on its deliberations, including consultations, relating to its funding of the Community Alert programme and Text Alert crime prevention schemes which are operated by Muintir. It is worth noting that the Department has cited a number of exemptions for redacting the records and that it has not expressly stated what exemptions apply to each redaction. It seems to me that a number of the redactions fall to be considered under section 36 only, which is concerned with the protection of commercially sensitive information. In so far as the redactions concern the Department's consideration of funding matters, I accept that the information in question relates to the deliberative processes of an FOI body and that the first requirement for section 29(1) to apply is also met in respect of this information.
However, as I have indicated above, that is not the end of the matter as the Department must also satisfy this Office that release of the information would be contrary to the public interest. For a body to satisfy this Office that releasing records would be contrary to, or against, the public interest, it would generally need to identify a specific harm to the public interest flowing from release. A mere assertion without supporting evidence is not sufficient to satisfy the requirement that granting access to the record would be contrary to the public interest.
The Department stated that while the records at issue relate to deliberations on funding of the Community Alert programme for 2016, communications on such matters often carry over from one year to the next and form a continuum of deliberations and consideration. It argued that the disclosure of the records could easily impact on the further deliberations of such matters in relation to 2017. It argued that the 2017 deliberations include most of the same issues detailed in the records withheld and that it would compromise the ability of the Department to conduct proper and orderly deliberations if these matters were disclosed to parties who are not directly involved in the process.
The Department also stated that the release of the records would disclose the detail of the ongoing deliberations and would highlight potential funding decisions. It argued that it cannot have its deliberations second-guessed by parties not directly involved and as the decisions relate to important crime prevention programmes, there is a distinct public interest in the orderly consideration of such matters.
Having considered the Departments arguments, I am not satisfied that it has explained how the harms it has identified might arise by the release of the records. It did not explain how the release of the records would compromise its ability to conduct proper and orderly deliberations. In my view, the mere fact that public awareness of the nature of ongoing deliberations of funding may elicit commentary and/or criticism of proposals does not, of itself, mean that the Department would not be in a position to consider relevant matters in an orderly fashion. It is noteworthy that under section 11(3) of the Act, an FOI body performing functions under the Act must have regard to, among other things, the need to inform scrutiny, discussion, comment and review by the public of the activities of FOI bodies and facilitate more effective participation by the public in consultations relating to the role, responsibilities and performance of FOI bodies.
In my view, the Department has not satisfactorily explained why the release of the records would be contrary to the public interest. I find, therefore, that section 29(1) does not apply.
Section 35 - Confidential Information
The Department refused access to records 20, 21, 30 and parts of 31, 32 and 33 on the grounds that Section 35(1)(a) applies. That section provides for the protection of information obtained in confidence. For the section to apply, four requirements must be met, namely:
the record must contain information given to an FOI body in confidence
the information must have been given on the understanding that it would be treated by the body as confidential,
its disclosure would be likely to prejudice the giving to the body of further similar information from the same person or other persons, and
it is of importance to the body that such further similar information as aforesaid should continue to be given to the body.
Records 20, 21 and 31 comprise email correspondence between the Department and AGS. The Department argued that the disclosure of the records would breach an ongoing confidential discussion between the Department and AGS in relation to the matters discussed. It argued that if it is not possible for AGS to be assured that information given in confidence remains confidential in one case, then it cannot reasonably predict in what other cases confidential information might be revealed. As the Department is well aware, section 35(1)(a) cannot be used to provide a blanket protection for all of its communications with AGS. Each record must be considered on its merits and the four requirements set out above must apply.
During the review, this Office invited AGS to make a submission in respect of the applicability of section 35 to the records in question. AGS agreed with the views of Ms Lynch, Investigator, that the records should not be withheld under section 35. As such, it is clear that all four requirements cannot possibly apply to the records sought. I find, therefore, that section 35(1)(a) does not apply to records 20, 21, or to the relevant parts of record 31.
Records 30, 32 and 33 comprise email correspondence between the Department and Muintir. The correspondence relates to the Department's funding of Muintir's programmes. While I accept that Munitir may have concerns about the possibility of commercially sensitive information being released, it seems to me that the funding it receives from the Department is critical to its ability to provide the services that are funded. As such, I do not accept that Munitir would refuse, in the future, to supply information that the Department requires to allow it to make an informed decision on the level of funding to be made available. I find that the third requirement for section 35 to apply is not met in this case. Accordingly I find that section 35(1)(a) does not apply to record 30 or to the relevant parts of records 32 and 33.
Section 36(1)(b) and (c) - Commercial Sensitivity
The Department refused access to records 18 and 30 and to various parts of records 29, 32, 33, 36 and 37 under sections 36(1)(b) and 36(1)(c). Section 36(1)(b) protects information whose disclosure could reasonably be expected to result in a material financial loss or gain to the person to whom the information relates or could prejudice the competitive position of that person in the conduct of his or her profession or business or otherwise in his or her occupation. The essence of the test in the first part of this section is not the nature of the information but the nature of the harm which might be occasioned by its release. In order for the exemption to apply, the FOI body must identify the harm and consider the reasonableness of its expectation that the harm could arise as a result of the release of the information at issue. The standard of proof required in the second part of the sub-section (could prejudice the competitive position etc.) is considerably lower than the standard required to meet the test of "could reasonably be expected to" in the first part of section 36(1)(b), in the sense that the test is simply whether prejudice could occur.
Section 36(1)(c) protects information whose disclosure could prejudice the conduct or outcome of contractual or other negotiations of the person to whom the information relates. Yet again, the standard of proof required to meet this exemption is quite low. Nevertheless, a body seeking to rely on this exemption should be able to show that contractual or other negotiations were in train or were reasonably foreseen which might be affected by the disclosure and to explain how exactly the disclosure could prejudice the conduct or outcome of such negotiations.
Muintir is a national voluntary organisation dedicated to promoting the process of community development. It is a limited company operating in the not for profit sector and is not itself subject to FOI. According to the Department, it has provided funding to support the national and regional operation of the Community Alert programme and most of this funding is made up of salaries, expenses and administration costs for the Community Alert National Office and three of the five Regional Development Officers. It stated that some more modest funding may also be provided to support particular project work, depending on the level of resources available in a given year. There are no contractual arrangements between the Department and Muintir. The Community and Text Alert schemes, which are grant funded by the Department, are operated as a partnership between Muintir and AGS.
The records for which section 36 has been claimed are correspondence between the Department, Muintir and AGS regarding proposals and arrangements for funding of these schemes, and include financial information about Muintir's operations. The Department stated that some of the proposals submitted by Muintir concern projects with a commercial involvement. It stated that Muintir operates in a sector in which it competes with commercial and other not-for-profit organisations in relation to new project proposals and in relation to the provision of communication and supports for local groups.
In its submission to this Office, Muintir referred to the possibility that the Community Alert programme may have to be put to public tender in 2018 and that it is aware of two other organisations that would be interested in taking the programme. It argued that allowing those organisations access to its detailed financial budgets, staff structure etc. would provide them with an unfair competitive advantage. It argued that the sensitive information at issue included discussions of administration costs, how best practice may or may not be applied, details regarding certain specified projects.
Having considered the information at issue and the arguments of the Department and Munitir, I accept that the release of some, but not all, of the information, could prejudice the competitive position of Munitir. I find that section 36(1)(b) applies to the following information:
Record 18: Pages 6 to 8 (Community Alert Programme 2015 Funding Submission)
Record 29: Pages 6 to 8 (Community Alert 2016 Funding Proposal)
In my view, the remaining information that the Department sought to protect under section 36(1)(b) is either historic, too general, or too high level to be of such use to competitors of Muintir that it could prejudice the competitive position of Muintir or, indeed, give rise to any of the harms identified in section 36(1)(b). I should add that I had regard to the fact that the information to which I have found section 36(1)(b) to apply in records 18 and 29 may now also be regarded as historic and it could be argued that it may have lost its sensitivity at this stage.
However, I am satisfied that the information contains detailed information relating to the operations of Muintir that may, indeed, be of interest to its competitors to the extent that it could affect Muintir's competitive position
Section 36(2) provides for the release of information to which section 36(1)(b) is found to apply in certain circumstances. I am satisfied that none of the circumstances identified at section 36(2) arise in this case. Under section 36(3), I must also consider whether, on balance, the public interest would be better served by granting than by refusing the information in question.
The FOI Act is concerned with the promotion of transparency and accountability in public bodies and while it is open to the Minister for Public Expenditure and Reform to extend the provisions of the Act to community and voluntary organisations, such as Muintir, this has not been done to date. It seems to me that if there is a public interest in releasing the information sought, it arises in relation to the manner in which public funds are granted by the Department. The accounts of Muintir are prepared annually and lodged with the Companies Office in accordance with company law. In addition, information on the schemes operated by Muintir and supported by the Department is included in the accounts of the Department, responses to parliamentary questions and other publicly available information.
Having considered the matter and examined the withheld information, I am satisfied that the public interest in openness and accountability and in the public knowing how the Department carries out its functions and disburses public funds is served to some extent by the information already released and other publicly available information. I fail to see how the release of the information at issue would further serve that public interest to the extent that it would outweigh the public interest in protecting the commercially sensitive information of Muintir. I find, therefore, that section 36(1)(b) applies to the relevant information contained in Records 18 and 29 as identified above.
For the sake of completeness, I am satisfied that section 36(1)(c) does not apply to any of the remaining information in the relevant records to which I have not found 36(1)(b) to apply, as there is no indication that it relates to negotiations, nor has the Department identified any such negotiations. I would also add that both the Department and Muintir raised some concerns about the release of certain information that would disclose personal information relating to identifiable individuals, which is protected under section 37 of the Act. Having examined the records, I am satisfied that any such information is contained in those parts of records 18 and 29 that I have already found to be exempt under section 36(1)(b).
Having carried out a review under section 22(2) of the Freedom of Information Act 2014, I hereby vary the decision of the Department. I find that the Department has not justified its decision to refuse access to the records sought, apart from pages 6 to 8 of Records 18 and 29, which I find to be exempt under section 36(1)(b).
I specify that, subject to sections 24 and 26 of the FOI Act, effect shall be given by the Department to my decision within five working days of the expiration of the 4 week period for the bringing of an appeal to the High Court from this decision as provided for at section 24(4) of the FOI Act.
Section 24 of the FOI Act sets out detailed provisions for an appeal to the High Court by a party to a review, or any other person affected by the decision. In summary, such an appeal, normally on a point of law, must be initiated 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