Cinneadh
Mr. X & National Council for Curriculum and Assessment (NCCA)
Ó Oifig an Choimisinéara Faisnéise
Cásuimhir: OIC-152461-H7W8Q9
Foilsithe
Teanga: Níl leagan Gaeilge den mhír seo ar fáil.
Ó Oifig an Choimisinéara Faisnéise
Cásuimhir: OIC-152461-H7W8Q9
Foilsithe
Teanga: Níl leagan Gaeilge den mhír seo ar fáil.
Whether the NCCA was justified, under sections 30(1)(a), 35(1)(a) and 37(1) of the FOI Act, in partly refusing access to submissions it had received for the purposes of a consultation on the draft specification for Leaving Certificate Biology, Chemistry and Physics
1 August 2025
By way of context, the NCCA is engaged in an ongoing process to redevelop the senior cycle (Leaving Certificate) educational curriculum for schools in Ireland. As part of this process, the NCCA has developed draft curriculum specifications for Leaving Certificate Chemistry, Physics and Biology. These draft specifications were made available for national public consultation from 8 December 2023 to 23 February 2024. The NCCA’s stated aim in the consultation process was to seek the views of the public in relation to the curriculum and assessment arrangements in the new draft specifications, and to gain insights into participants’ overall impressions of the specifications. The NCCA subsequently published a report (“the NCCA report”) on its consultation on the draft specifications for Leaving Certificate Biology, Chemistry and Physics, recording and analysing the feedback received. Contributors who had made submissions as part of the consultation process were listed in Appendix 1 of the report.
In a request dated 9 July 2024, the applicant sought access to copies of the submissions, as listed in Appendix 1 of the NCCA report. It should be noted that, while the applicant’s FOI request specifically referenced 22 submissions to which he sought access, one organisation that initially made submissions withdrew its observations prior to publication of the NCCA report, and accordingly is not listed in Appendix 1. This submission is therefore outside the scope of the FOI request and of this review.
In a decision dated 2 August 2024, the NCCA refused the applicant’s FOI request, citing sections 29(1), 30(1)(a) and 37(1) of the FOI Act as grounds for so doing. On 12 August 2024, the applicant sought an internal review of the NCCA’s decision. In the course of his internal review request, the applicant made detailed arguments as to why he believed the information he had sought should be released. In its internal review decision dated 3 September 2024, the NCCA varied its original decision, part-releasing copies of the records at issue with redactions made pursuant to sections 30(1)(a), 35(1)(a) and 37(1) of the FOI Act. The NCCA indicated that it no longer sought to rely on section 29(1) of the FOI Act. On 1 October 2024, the applicant applied to this Office for a review of the NCCA’s decision.
It should be noted that, in his application to this Office for a review of the NCCA’s decision, the applicant expressed his dissatisfaction with the manner in which the partly-released records had been provided to him. In particular, he argued that the records he had received were presented by the NCCA in an unintelligible manner, with material provided in such a jumbled fashion that he had been unable to determine if he had received all of the relevant records. When, for the purposes of this review, I received copies of the records at issue from the NCCA, I encountered no such issues. However, a comparison of the records provided to this Office and those provided to the applicant in the course of his request show that two different versions appear to have been provided, in different formats. The records that were provided to this Office for the purposes of this review comprise 21 discrete records, in redacted and unredacted format. However, this is quite different to the material that was provided to the applicant in the course of his FOI request. In response to his request, the applicant was provided with access to redacted, publicly available material at a number of online links. From a perusal of the information at these links, it appears to contain different information (namely a number of additional submissions), in a different manner from that scheduled and provided to this Office. Furthermore, I took the view that it was reasonable for the applicant to describe the material at these links as having been provided in a jumbled and unintelligible manner, as I also found it somewhat difficult to peruse.
I therefore contacted the NCCA to query why it had provided this Office with different records, in a different format, to those provided to the applicant. I also enquired as to whether it would be possible for the NCCA to provide the applicant with relevant material in the same manner that it had provided it to this Office (i.e. in the form of 21 discrete records, redacted as the NCCA considered appropriate). In response, the NCCA stated that it had been required to aggregate the submissions that comprised the records prior to their publication/disclosure, and the manner in which it had provided the applicant with access to the records (i.e. a link to publicly available documents) had been the most efficient manner of doing so. The NCCA also noted that the aggregated documents included submissions which were outside the scope of the request and that, if it had compiled and scheduled these, it would have involved scheduling records that were outside the scope of the applicant’s request. The NCCA stated that, in its response to the applicant’s request, it had sought within the scope permitted under section 17 of the FOI Act (relating to the manner of access to records) to balance its obligations to ensure that the greatest information could be released, while complying with its obligations to third parties.
I am not entirely clear that I follow the NCCA’s arguments, which do not account for the fact that, when it came to providing this Office with relevant records for the purposes of this review, it was able to furnish 21 discrete records comprising each of the submissions at issue. I do not understand why the records relevant to the applicant’s request could not have been provided to him in the same manner (with redactions made as the NCCA considered appropriate). In any case, in response to my queries, the NCCA in fact subsequently provided the applicant with the records in a similar form to the manner in which it had provided them to this Office. In light of this new provision of records, I contacted the applicant to enquire as to whether he was now satisfied with the information provided, with a view to possibly settling the matter. The applicant indicated that he remained dissatisfied, and I address this matter in more detail below. For the avoidance of any doubt, having examined the records that the NCCA provided to the applicant on foot of my queries, I am satisfied that the records now in the applicant’s possession are the same as the records that were provided to this Office for the purposes of this review.
I also note that, in his application to this Office for a review of the NCCA’s decision, the applicant clarified that he was seeking access to the submissions made by organisations, and specified in particular that he did not require access to submissions made by individual teachers or educationalists. It would appear to me that this effectively excludes certain material from the scope of this review. Notwithstanding the fact that the NCCA has part-released certain submissions made by individuals (as opposed to organisations), the applicant has been unequivocal that he is not seeking access to such records. Accordingly, I consider it appropriate to exclude any such submissions from the scope of this review. An examination of the records at issue shows that record 1 is a submission made by an individual. It follows that I am not required to consider this record as part of this review. For the avoidance of doubt, where the submissions that comprise other records contain the names of individuals, I am satisfied that such submissions were made by the individual on behalf of an organisation, so as to bring them within the scope of this review – this does not appear to me to be the case with record 1) . With the removal from the scope of this review of record 1, along with the record referenced above that is excluded on the basis that it was not listed in Appendix 1 of the NCCA report, this leaves a total of 20 records to be examined as part of this review.
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 NCCA in support of its decision, as well as to the applicant’s comments in the course of his correspondence with the NCCA and in his application to this Office for a review. I have also examined the records at issue. I have decided to conclude this review by way of a formal, binding decision.
This review is solely concerned with whether the NCCA was justified, under sections 30(1)(a), 35(1)(a) and 37(1) of the FOI Act, in partly withholding the records sought by the applicant.
In his application for a review of the NCCA’s decision on his request, the applicant set out the relevant background – essentially, setting out the reasons why he had made his request. In particular, the applicant expressed dissatisfaction with the NCCA report and the manner in which the body managed the consultation process. I wish to note that these issues are beyond my remit to examine. This Office has no role in investigating complaints, adjudicating on how FOI bodies perform their functions generally, or acting as an alternative dispute resolution mechanism with respect to actions taken by FOI bodies.
Furthermore, it should be noted that section 13(4) of the FOI Act provides that, subject to the legislation, in deciding whether to grant or refuse an FOI request, any reason that a requester gives for the request and any belief or opinion of the FOI body as to the reasons for the request shall be disregarded. Thus, while certain provisions of the FOI Act implicitly render the motive of the requester relevant, as a general rule, the actual or perceived reasons for a request must be disregarded in deciding whether to grant or refuse an access request under the FOI Act.
In addition, I have noted above the issues that the applicant raised with the manner in which the part-granted records had been initially provided to him. In this regard, as a general observation I would note that as a matter of best practice FOI bodies should provide copies of records to requesters that are easily understandable and easily identifiable (usually by way of a record number which corresponds to a record number on an accompanying schedule of records). The schedule should also contain a description of each record and any applicable exemption(s) under the FOI Act that the body has applied thereto.
Finally, I also wish to note that, as noted above, in the course of conducting this review I explored with the applicant the possibility of settling the matter on the basis of the NCCA’s release of records to him in a different format. The applicant, in refusing to settle the matter on this basis, made a number of additional arguments as to why the NCCA’s release to him of the relevant records with redactions remained unsatisfactory. In particular, he referenced the NCCA’s reliance on the General Data Protection Regulation (“GDPR”), which appears to have been cited by the NCCA as a basis to refuse to provide the applicant with access to the unredacted submissions at some point prior to his FOI request. I would note that the issue of the NCCA’s reliance on the GDPR is outside the scope of this review to consider. While it may be the case that the NCCA might have cited the GDPR as a basis to refuse to release the unredacted submissions to the applicant at some point, this is of little relevance to the matter at hand. It is very clearly the case that the NCCA did not seek to rely on the GDPR either in its decision on the applicant’s FOI request or in its submissions to this Office, and that on the contrary it sought to rely on the relevant provisions of the FOI Act. This was a perfectly appropriate manner of responding by the NCCA. I would note as a general point that the GDPR is entirely separate from FOI legislation and that any reliance by a public body on the GDPR in response to an FOI request would be misguided.
The records at issue
Each of the records at issue in this review is a submission made to the NCCA by an organisation, or in some cases a named individual on behalf of an organisation, in the context of the consultation process described above. As noted, the NCCA part-released each of the 20 records. The material that has been redacted from the records by the NCCA is, generally speaking, information in each record that could identify the organisation that has made a submission, and/or, in some cases, the names of individuals who made submissions on behalf of organisations.
Section 30(1)(a)
As the NCCA cited section 30(1)(a) of the FOI Act as a basis to withhold information from each of the 20 records at issue, I consider it appropriate to examine its applicability first of all. Section 30(1)(a) provides that an FOI body may refuse to grant an FOI request if access to the record concerned could, in its opinion, 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.
Section 30(1)(a) is what is known as a harm-based provision – in other words, where an FOI body relies on section 30(1)(a) 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. The FOI body should explain how and why, in its opinion, release of the record(s) could reasonably be expected to give rise to the harm envisaged. A claim for exemption under section 30(1)(a) must be made on its merits and in light of the contents of each particular record concerned and the relevant facts and circumstances of the case. A claim for exemption pursuant to section 30(1)(a) which is class-based is not sustainable e.g. a claim for exemption for ‘any’ draft report.
In examining the merits of an FOI body’s view that the harm could reasonably be expected, the Commissioner does not have to be satisfied that such an outcome will definitely occur. The test is not concerned with the question of probabilities or possibilities. It is concerned with whether or not the decision maker's expectation is reasonable. It is sufficient for the FOI body to show that it expects an outcome and that its expectations are justifiable in the sense that there are adequate grounds for the expectations.
The NCCA’s submissions
In its submissions, the NCCA stated that the relevant functions, for the purposes of section 30(1)(a), that would be harmed by the release of the information redacted from the records, were the information-gathering exercises that form of the system of inquiry carried out as part of its ongoing curriculum consultation process. The NCCA argued that these information gathering exercises would be harmed by way of prejudice to the effectiveness of similar future NCCA processes (and the procedures for carrying out those processes) because release would make it more difficult to obtain necessary information or making individuals/organisations less likely to provide that information, or the same level of information.
In relation to the manner in which the release of the information at issue could be expected to result in the harms identified, the NCCA argued that individuals and organisations had been provided an assurance that any information provided would be anonymised/aggregated/non-attributable, and that there was an understanding that individual submissions would not be released in a way which identified the person or organisation providing that submission. It argued that individuals and organisations responding to NCCA consultations would be less likely to provide information, or the same level of information, if they perceived that information would be released in a manner contrary to assurances given at the time it was provided. The relevant section of the wording of the assurance provided by the NCCA to participants states as follows:
“NCCA, as a public body operating under the Open Data and Public Service Information Directive (2021), is required to publish publicly funded research. Further information on the NCCA’s Data Protection Policy can be found at https://ncca.ie/en/legal-disclaimerand-data-protection/. In accordance with the Open Data and Public Service Information Directive (2021), any data from this will be further anonymized and aggregated and only made available after the final report is completed. This is expected to be in June 2024. Where a respondent selects ‘yes’ to the question Are you willing to be listed as a contributor to the consultation, respondents are consenting to having their name / organisation’s name published as respondents to the online survey”.
The NCCA further noted that participants had given their consent to being listed as having made submissions in the appendix to the NCCA report, but that consent was not sought or provided to any such submissions being de-anonymised/de-aggregated (i.e. while the appendix to the NCCA report lists the parties that made submissions, the identity of each contributing party is not tied to its individual submission). The NCCA argued that such de-anonymisation or de-aggregation would be contrary to the assurance provided to all participants and the basis on which they had participated. The NCCA stated that it did not follow, from the fact of an organisation having consented to being listed as a participant in the appendix to the NCCA report, that it also consented to being identified as the author of a particular submission. The NCCA stated that, although organisations may consent to being listed as a participant, they still expected that their particular submission would be anonymised and aggregated. The NCCA noted that this is the standard practice for its consultation process, and acting contrary to this practice and assurance would adversely impact that process in the manner it had identified.
With regard to the reasonableness of its expectation of harm, the NCCA stated that conducting such inquiries was one of its regular activities and a vital part of its statutory role in advising the Minister for Education. It argued that in order to ensure that the greatest possible amount of information was provided during the consultation process, assurances had been given to those providing submissions, in the manner set out above. The NCCA argued that releasing information in a manner other than that which had been assured at the time it was provided could reasonably be expected to deter future submissions, or cause individuals and/or organisations to provide less information than they otherwise would, including current and possible future stakeholders. The NCCA also noted that one individual contributor who had initially authorised the NCCA to publish his identity as a contributor had already asked that this be rescinded and his identity removed, and argued that this highlighted the importance of the anonymisation/aggregation processes.
The applicant’s submissions
In the applicant’s original submissions that accompanied his application to this Office, he made a number of comments regarding the manner in which the NCCA had carried out the consultation and reporting process generally, which as I have noted above are not within the remit of this Office to address. The applicant made further arguments regarding the NCCA’s deliberative process which, while mostly relevant to section 29(1) of the FOI Act, on which the NCCA no longer seeks to rely, also have some relevance for a consideration of section 30(1)(a). In particular, the applicant referred to a similar consultation process undertaken by the Oireachtas Committee on Education and Skills in 2020, and noted that, on that occasion, all submissions received were published in full on the Committee’s website. Similarly, the applicant stated that, in 2022, when the Joint Committee on Education, Further and Higher Education, Research, Innovation and Science requested submissions on the Future of Science, Technology, Engineering and Maths (STEM) in Irish Education, all submissions received were published in full in the report of the Committee, which was made available online. The applicant’s argument appears to be that, as the specified committees made public the submissions received in the course of their separate consultation processes, so the NCCA should release in full the identities of the parties which had made each individual submission in this instance.
The applicant also made arguments regarding the supposed confidentiality of the submissions. While these arguments are most pertinent to section 35(1)(a) of the FOI Act (on which the NCCA also sought to rely), they also have some relevance in an examination of section 30(1)(a), given that the NCCA’s position is that assurances of anonymity were given to participants and that its information-gathering processes could be harmed by the release of the information redacted from the records. On this point, the applicant argued that the NCCA’s position regarding the confidentiality of the submissions made no sense, as certain of the submissions are already in the public domain, having been published by the organisations who made them. The applicant argued that it is clear that none of the published submissions contain confidential information that should have prevented their release, but simply contained commentary on the draft curriculum specifications.
Findings
I have carefully considered the arguments of the NCCA under section 30(1)(a), in the context of the contents of the individual records, and I find as follows. Firstly, I accept that the NCCA has identified a relevant function, for the purposes of section 30(1)(a), that it considers would be harmed by the release of the information at issue, namely the information-gathering exercises it carries out as part of its curriculum consultation process. In addition, I accept that the NCCA has set out the manner in which it believes this function would be harmed by the release of the information, in other words that relevant parties would be dissuaded from providing similar information, or the same level of information, to the NCCA in future if the material at issue were to be released, and that this would adversely affect its abilities to carry out the function effectively.
As to whether or not the NCCA’s expectation of harm is reasonable in this case, I find as follows. I have noted the assurance provided by the NCCA to respondents who provided submissions as part of the consultation process, and I consider that in the case of the majority of the parties who made submissions, I must regard that assurance of anonymity as having been taken into account by any individual and/or group who responded. I am also guided in this finding by the fact that the issue of the review of the curriculum has not been entirely uncontroversial, with articles appearing in the national media that noted, among other things, criticisms of the manner in which the NCCA conducted the consultation process. In my view, it is not unreasonable to suggest that, given the attention of the national media on the matter, certain respondents might hesitate to provide information, or would be less frank and forthcoming in the information that they provide, if they believed that their identity, linked to the detail of their submissions, would be made public.
I have carefully considered the arguments of the applicant and note his position that, as certain Oireachtas Committees have made submissions public in the course of similar consultation processes in recent years, the NCCA should have done the same. I take the view that this goes to questions regarding the general procedures and practices of the NCCA and the performance of its official functions, upon which this Office has no role in adjudicating. While these arguments of the applicant might be relevant to the public interest (a matter I consider further below), they do not, of themselves, seem to me to comprise an argument that the NCCA was not justified under section 30(1)(a) of the FOI Act in withholding the information at issue.
I also wish to address the applicant’s contention that, as certain of the organisations which made submissions had published those submissions themselves, the idea that the submissions in general contained confidential information did not make sense. I do not accept this argument. The applicant is quite correct to state that three organisations out of 20 made their submissions public in full, by publishing them on their individual websites. However, I cannot agree that it follows from this fact that none of the remaining organisations could have any objection to the release of information that identified them as the author of a specific submission . There is no information available to me to suggest that this is the case, and in the absence of any such information I do not consider that it is open to me to assume that the organisations would be happy to have such identifying information released. Indeed, I would note that it is open to any of the other organisations to make their specific submission public, in the manner that three organisations have done, and the fact that none of the remaining parties have done so suggests, if anything, that they may not wish to make public the fact of their having made a particular submission. In addition, I would note that that the harm test in section 30(1), as opposed to, for example, section 36(1), is concerned with functions of the FOI body and relevant procedures and methods. The fact that certain info may be in the public domain does not necessarily render the expected harms moot.
On the basis of the above analysis, I consider that is reasonable to suggest, as the NCCA has done, that to release identifying information in relation to those respondents could reasonably be expected to lead to the adverse effect on its functions that I have described above. Specifically, in circumstances where assurances of anonymity have been given by the NCCA at the stage when it invited submissions, and in circumstances where I am not free to assume that such assurances were of no importance to the parties making such submissions, I consider it reasonable to suggest that to release identifying information relating to which respondents made specific submissions could be expected to result in respondents not providing information, or not providing the same level of information, in any similar consultation exercise run by the NCCA in future. Such an outcome would have obvious adverse effects on the NCCA’s ability to perform its statutory role effectively. While it is not possible to say for certain that such an adverse effect would unequivocally follow from the release of the information redacted from the records, as noted above for the purposes of section 30(1)(a) I do not have to be satisfied that the specified harm will definitely occur. The test is whether the FOI body’s expectation of harm is reasonable. While I can certainly appreciate the applicant’s concerns regarding the manner in which he says the NCCA conducted the consultation process generally, again I must reiterate that such questions are beyond the remit of this Office to examine. I am satisfied, on the basis of the information in the records and of my analysis as outlined above, that (in the case of the majority of parties who made submissions), the NCCA’s expectation of harm is reasonable. The information therefore comes within the scope of the exemption provided for in section 30(1)(a).
In particular, I wish to address further the question of the three organisations who made submissions (comprising records 4, 5 and 12) which have themselves publicised the fact of them doing so, and indeed have made the full content of their submissions public on their websites. The applicant has argued that the fact of such publication means none of the contents of the records should be withheld, and as outlined above I do not accept this argument. Furthermore, with specific reference to record 4, 5 and 12, notwithstanding the fact that the organisations which made the submissions that comprise these three records published the submissions in full, I consider that they nonetheless come within the scope of section 30(1)(a). This is the case in circumstances where, as noted above, section 30(1)(a) is concerned with the functions of an FOI body, and the harms that might be caused to same, and not any harms that might flow from the release of the specific information at issue. Thus, while the particular organisations which published their submissions in full might reasonably be expected to have no objections to their identities as authors of a particular submission being released under FOI, the fact remains that I have accepted the NCCA’s argument that the release of information in respect of which it provided an assurance of confidentiality could have the effect of damaging its ability to effectively perform its statutory function in future. On this basis, I am satisfied that section 30(1)(a) applies to records 4, 5 and 12 in the same manner that it does to the other records at issue.
Accordingly, I find that the material redacted by the NCCA from the records at issue comes within the scope of section 30(1)(a). However, the matter does not end there, because section 30(1) is subject to a public interest test in section 30(2). Section 30(2) provides that the exemption at section 30(1) will not apply in relation to a case in which, in the opinion of the FOI body, the public interest would, on balance, be better served by granting than by refusing to grant the FOI request concerned.
In its submissions, the NCCA addressed the public interest test, stating that there was a strong public interest in the public being informed (including through the media ) on how the NCCA carries out its statutory functions and how it uses public monies. It stated that there was an equally strong public interest in the public being informed of matters relating to decisions on the education system, and decisions made in relation to same. The NCCA also identified a public interest in being informed of information which underpins decision-making by public bodies like the NCCA.
However, it argued that there were important countervailing public interests in ensuring that information which is provided in confidence, namely non-aggregated/non-anonymised submissions, is kept confidential and secure in line with the basis on which that information was provided and collected. Firstly, it identified the public interest in the NCCA being able to carry out its statutory functions in an effective manner, in being able to advise the Minister for Education, and in the Minister being able to make fully informed decisions about the national curriculum. The NCCA stated that the curriculum is a matter of national importance and there is a very strong public interest in it being designed and implemented in an effective manner, based on robust and comprehensive feedback from all sectors of society. It argued that the release of information in a non-aggregated and non-anonymised manner (in such a way that could link particular organisations to the authorship of specific submissions), contrary to assurances given and expectations about the curriculum feedback process, would breach the rights of the contributors and prevent similar information being provided in future, detrimentally impacting these important processes and harming the important public interests identified noted above which they serve. The NCCA reiterated its view that individuals and/or organisations would not provide the same (or the same level of) information in future if that information was released contrary to their expectations and express assurances. The NCCA argued that it was important, both to it and to the public, that it was able to conduct these processes, which are part of its statutory functions and necessary to enable it to advise the Minister, as required under section 41 of the Education Act 1998. The NCCA argued that the importance of the aggregation process was underlined by the fact that those making decisions on the curriculum only receive the aggregated/anonymised submissions, in order that no one submission may carry any more weight than another. It also argued that it was important that the public are confident that this is so. Finally, the NCCA noted that it made information in relation to public consultations publicly available, including in this instance the publication of the NCCA report, as well as aggregated and anonymised submissions on the draft specifications. It stated that it regularly publishes information on its processes and the results of consultations, either in anonymised form or where consent is obtained at the point of collection, and noted that it publishes the identity of persons who contribute to consultations with their express consent.
In his application for review, while the applicant did not expressly address the NCCA’s reliance on section 30(1)(a), he did make some comments which, while being cognisant of the requirements of section 13(4) of the FOI Act as outlined above, I consider are reflective of a public interest in the release of the material at issue. In particular, the applicant raised concerns regarding the extent to which the submissions had been made available to meetings of the relevant Development Groups (which are bodies established by the NCCA to consider and provide observations on its curriculum and development work) to aid such groups in their deliberations. I note that such concerns have also been publicised in the national media. The applicant also, as discussed above, raised the issue of certain Oireachtas Committees making public submissions they received in the course of similar consultation processes in recent years. I consider that the applicant has, effectively, outlined a valid public interest in the release of the material at issue, namely to ensure that the submissions are made available to the greatest number of relevant parties, and to ensure the greatest level of oversight of the manner in which the NCCA carries out its consultation process, and the manner in which it fulfils its statutory role more generally.
This being said, I consider that the release to the applicant of the redacted versions of the submissions largely fulfils this public interest. Having been provided with the actual content of the submissions, by way of the redacted records released by the NCCA, it is not entirely apparent to me that any further significant public interest benefit would be achieved by the release of information that identifies the parties which made each individual submission. Indeed, the utility – from the point of view of the public interest arguments outlined above – of releasing the information identifying specific organisations as the authors of particular submissions is not particularly clear to me at all. Furthermore, any public interest benefit that would be achieved must be balanced against the harms to the public interest identified by the NCCA, which I largely accept – particularly the harms to the public interest that might be expected to flow from potential respondents being dissuaded from providing full and frank information in any future NCCA consultation process. Furthermore, and again as noted above, it remains open to any respondents that provided submissions, and which might be concerned at any perceived lack of transparency in the NCCA’s consultation process in general, to publish their submissions themselves, if they are happy to do so, in the manner that three of the participating organisations already have.
In relation to the applicant’s arguments regarding the contrary practices of previous Oireachtas Committees, again I am limited by the fact that the NCCA’s policies and procedures, and the performance of its official functions, are outside the remit of this Office. I certainly accept that it would appear that no obvious harm to the public interest was perceived by those Oireachtas Committees in publishing in full the submissions they received. However, the information available to me in relation to the practices and procedures of those committees is very limited. There is no indication, for example, of whether (and to what extent) assurances of anonymity, such as were provided to respondents by the NCCA, were made in the context of those earlier consultations. In short, while I take the applicant’s point that those Oireachtas Committees saw fit to publish in full the submissions received, those were different processes to the matter at hand. I do not accept that it necessarily follows, from the fact of previous submissions to Oireachtas Committees being published in full, that the public interest in this case would be better served by the release of the information at issue.
In sum, on the basis of the above analysis I find that, on balance, the public interest would be better served by the withholding of the information that the NCCA redacted from the records.
I find, therefore, that the NCCA was justified under section 30(1)(a) of the FOI Act in withholding from release the information it redacted from the records. In those circumstances, I need not examine whether the information is also exempt under sections 35(1)(a) and section 37(1).
Having carried out a review under section 22(2) of the FOI Act, I hereby affirm the NCCA’s decision. I find that the NCCA was justified under section 30(1)(a) of the FOI Act in withholding the information that it redacted from the records at issue in this review.
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.
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Neill Dougan
Investigator