Decision
Mr A and Department of Housing, Local Government and Heritage
From Office of the Information Commissioner (OIC)
Case number: OIC-154312-X9N6K0
Published on
From Office of the Information Commissioner (OIC)
Case number: OIC-154312-X9N6K0
Published on
Whether the Department was justified in refusing access to a record relating to demographic change on the basis of section 29(1) of the FOI Act
29 September 2025
In a request dated 30 September 2024, the applicant sought access to “a copy of any briefings, memos, reports, submissions, speaking notes, Q&As or other such high-level discussion or overview documents prepared for the minister and/or the Secretary General with regard to the role of immigration in contributing to homelessness” and “a copy of any correspondence between the department and the Department of the Taoiseach with regard to the above”. He specified that his request covered the period from 20 September 2024 to the date of the request. In a decision dated 5 November 2024, the Department part-granted the applicant’s request. It identified five records as coming within the scope of the request. It granted access in full to one record, part-granted access to two records and refused access to one record on the basis of section 29(1). It said that the decision-maker could not access the remaining record as it was held by a staff member who was on bereavement leave. It said that this would be forwarded as soon as possible.
On 6 November, the applicant sought an internal review of the above decision. He made submissions in respect of the application of section 29(1) and a particular paper listed on the schedule of records. An internal review decision did not issue within the relevant timeframe and the applicant applied to this Office for a review of the decision on the basis of a deemed refusal.
On 4 December 2025, and following communications from this Office, the Department issued its internal review decision (I note that the decision in question is dated incorrectly). It affirmed its decision to part-grant and refuse three of the records. It said that it was refusing access to the outstanding record on the basis of section 42(j) of the FOI Act. On 6 December 2025, the applicant confirmed that he wished the review before this Office to proceed as the Department had not released the substantive document which he was seeking.
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 Department and the correspondence referenced above. I have also examined the record at issue. I have decided to conclude this review by way of a formal, binding decision.
While the Department identified five records as coming within the scope of the applicant’s request, having considered the correspondence on file, it appeared that the applicant was concerned solely with the refusal of record 5, described on the schedule of records as a “Demographic paper”, on the basis of section 29(1). This Office wrote to the applicant outlining our understanding of the scope of the review and invited any comment. No response was received. Accordingly, I am satisfied that this review is concerned solely with whether the Department was justified in refusing access to record 5 on the basis of section 29(1) of the FOI Act.
Although I am obliged to give reasons for my decision, section 25(3) of the FOI Act requires me to take all reasonable precautions in the course of a review to prevent the disclosure of information contained in an exempt record. This means that the extent to which I can describe the contents of the record in question is limited.
It is also important to note that section 22(12)(b) of the FOI Act provides that a decision to refuse to grant a request under section 12 shall be presumed not to have been justified unless the head of the relevant FOI body shows to the Commissioner's satisfaction that its decision was justified. This means that the onus is on the Department to satisfy this Office that its decision to refuse access to the record sought was justified.
Section 29 provides for the refusal of a request if (a) the record concerned contains matter relating to the deliberative process 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 met. The provision further states 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.
In order for section 29(1)(a) to apply, the records must contain matter relating to the ‘deliberative process’ of an FOI body. An FOI body relying on this exemption should identify both the deliberative process concerned and any matter in particular which relates to that process.
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 can no longer apply.
In its submissions, the Department said that the record in question is a draft working document created in response to a request from the Department of the Taoiseach. It said that in the document, it gathers information and presents a number of observations on the implications of some of the key variables underlying population change. It said that the document identifies a number of issues which the Department foresees across functional areas. It said that the record was refused as it is a draft document prepared for another Department to support its decisions on policy and strategy. It said that it is not party to any decisions being made by that Department in response to the document.
I note that in his internal review request the applicant said that no detail of the deliberative process had been provided and that it is unclear what decision-making process the record relates to.
Having considered the record in question and the above submissions, I am willing to accept that the record relates to a deliberative process. As per the Department’s submissions, it seems to me that the record was created for the purpose of informing policy and strategy decisions relating to housing and population change. As noted above, a deliberative process may be described as a thinking process which informs decision making in FOI bodies, involving the gathering of information from a variety of sources and weighing or considering same with a view to making a decision. In the context, I am satisfied that the record in question relates to such a process. I find, therefore, that the record meets the requirements of section 29(1)(a). However, that is not the end of the matter as I must also consider whether the granting of the request would be contrary to the public interest, pursuant to section 29(1)(b).
The public interest test at section 29(1)(b) is a strong test, requiring the FOI body to show that the granting of the request would be contrary to the public interest, and is stronger than the public interest test in many other sections of the Act, which generally requires that the public interest would, on balance, be better served by granting than by refusing to grant the request. This Office accepts that the FOI Act clearly envisages that there will be cases in which disclosure of the details of an FOI body’s deliberations – whether before or, in some cases, after a decision based on those deliberations has been made – would be against the public interest. However, that 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 submissions, the Department said that the record identifies a number of potential issues across functional areas. It said that it must be allowed to gather such information and consider issues without undue intrusion. It said that the public interest would be better served by the Department being able to carry out such exercises and decision-making processes without undue intrusion. It said that the deliberative process is still ongoing and that premature release of the record may affect the decision-making process. It said that there is much public discourse around migration and releasing a draft document, which is “only a part of a greater whole”, risks creating an incorrect or fragmented perception of the situation and the direction of public policy.
In its original decision, that Department indicated that release of the record would lead to the requester becoming aware of a significant decision that an FOI body proposes to make. The Department was asked to confirm whether this was still its position. In response, it said that it understands that the Department of the Taoiseach submitted an updated version of the paper to the Civil Service Management Board in December 2024 and that work on the matter is still ongoing. It said that it is not a party to any decisions being made by the Department of the Taoiseach in response to this document.
In his internal review request, the applicant noted that the public interest test at section 29 is the strongest in the legislation and requires that release of the record be contrary to the public interest. He said that the decision-maker cut and pasted a small amount of pro-forma material from guidance documents. He noted that the decision states that release of the record would make him aware of a significant decision that the public body proposes to make. He said that no further information has been provided as to why or how a document like this, “intended for discussion”, could do so. I note that in its internal review decision, the Department also said that disclosure of records which do not fully or fairly disclose the reasons for a decision may be unfair to the public body and prejudice the integrity of the decision-making process. It said that it also considered the need to avoid damage to the proper working of government at the highest level.
I have considered the submissions advanced and the contents of the record at issue. While I am limited in the extent to which I can describe the latter, the record presents observations on the key variables underlying population change and issues which the Department foresees across its functional areas. I would note that much of the information contained in the record appears factual in nature and references are made to other published papers, statements, summaries and reports.
While the Department has referenced potential harms to the decision-making process, it has not explained how such harm could result from release or how release would be contrary to the public interest. It argued that the public interest would be “better served” by the Department being able to carry out such exercises and decision-making processes without undue intrusion. However, it is important to note that the public interest test in section 29(1) is not a balancing test. The question is not whether release is in the public interest but whether release would be considered contrary to the public interest.
The Department said that release risks creating an incorrect or fragmented perception of the situation and the direction of public policy. 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, nor does the FOI Act provide for the withholding of information on the grounds that it is incomplete or inaccurate. 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 or are unable to present information to the public in a way which will allow any objective observer to draw accurate and balanced conclusions. The record at issue is a draft document outlining various observations at a relatively high level. It is not clear to me how release of the record would be expected to impair future decisions or prejudice the decision-making process, nor has the Department adequately explained its reasoning in this regard.
The Department also referenced the public discourse around migration. For the avoidance of doubt, the fact that there is significant interest in a subject among the public does not necessarily mean that records relating to that subject should be withheld, or, indeed, released. The release of a record may well generate discussion and debate but that alone is not a sufficient reason to refuse release.
As noted above, a feature of the public interest test which is unique to section 29 is the specific reference to considering whether the requester would, by the release of the record, become aware of a significant decision that the relevant FOI body proposes to make. I must take this into account in considering whether the granting of the request would be contrary to the public interest. If, by the release of the record, a requester would become aware of such a significant decision this would, in most cases, support an argument that release would be contrary to the public interest. The Department did not make substantive arguments in respect of this section of the provision. Indeed, it said that it is not party to any decisions being made by the Department of the Taoiseach in response to the document. I consider this to undermine any argument that release would result in the requester becoming aware of a significant decision; if the Department itself is not aware of any such decision, I do not see how the release of a record created by the Department could result in the disclosure of such information. I have also carefully considered the content of the record in question and I do not accept that release could result in the requester becoming aware of a relevant significant decision. Nor can I identify any reason that release would damage the proper working of government at the highest level, as advanced by the Department.
In sum, it is not clear to me how the release of the record at issue could result in relevant harms to a decision-making process. The Department has not sufficiently explained why it considers that granting the record would be contrary to the public interest, nor is this evident to me from an examination of the document. While the FOI body has made general submissions in respect of the public interest factors weighing against release, it has not shown to my satisfaction how granting access would be contrary to the public interest. Accordingly, I find that the Department has not justified its decision to refuse access to the record on the basis of section 29(1) of the FOI Act and I direct the release of same.
As an aside, even if I had found section 29(1) to apply, I note that much of the information contained in the record appears to be factual information. As such, section 29(2)(b) would arguably serve to disapply section 29(1) in respect of such information. However, I do not need to consider section 29(2) as I am satisfied that section 29(1) does not apply.
Having carried out a review under section 22(2) of the FOI Act, I hereby annul the Department’s decision. I find that it was not justified in refusing access to the record at issue on the basis of section 29(1) and I direct the release of same.
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.
Alison Connolly
Investigator