Cinneadh
Mr Ken Foxe, Right to Know CLG & Department of Public Expenditure
Ó Oifig an Choimisinéara Faisnéise
Cásuimhir: OIC-150173-Q4Q5S2
Foilsithe
Teanga: Níl leagan Gaeilge den mhír seo ar fáil.
Ó Oifig an Choimisinéara Faisnéise
Cásuimhir: OIC-150173-Q4Q5S2
Foilsithe
Teanga: Níl leagan Gaeilge den mhír seo ar fáil.
Whether the Department was justified, under sections 28, 29, 30 and 36 of the FOI Act, in refusing access to certain submissions to the Minister
25 June 2025
In a request dated 29 April 2024, the applicant made an FOI request for the following Ministerial submissions:
1. PER 01544-23 NCH
2. PER 00217-24 Defence Forces Retirement
3. PER 00207-24 Metrolink Briefing
4. PER 00076-24 Transfer of State Lands
5. PER 01543-23 LDA Business Plan
6. PER 00331-24 OPW Capability
7. PER 00231-24 Global Ireland
8. PER 01397-23 MATS
9. PER 01287-23 Ceann Comhairle Request
I have added the numbering for ease of reference and to correspond to the numbering on the schedule of records prepared by the Department.
In a decision dated 27 May 2024, the Department part-granted the request. It released all records relating to parts 2 and 9 of the request, but refused all other records under, variously, sections 15(1)(f), 28(1)(a), 28(1)(c), 28(2), 29(1)(a), 36(1)(a), 36(1)(b), and 36(1)(c) of the FOI Act. The applicant sought an internal review of this decision on 5 June 2024. On 25 June 2024, the Department affirmed its decision to refuse access to certain records. However, it said that records 4b and 4c were also exempt under sections 28(1)(a) and 28(1)(c). Furthermore, it said that record 6c remained refused under section 15(1)(f) pending its imminent publication on 8 July. On 1 July 2024, the applicant applied to this Office for a review of the Department’s decision, stating that he was unhappy with all parts of it. He referred to a recent interview with the Information Commissioner in which he said that the Commissioner had referred to a culture within the civil service that “information really should be released”. He said that this this decision demonstrated the opposite approach and noted that this was the Department responsible for oversight of FOI. He said that the Department seemed to be operating on an assumption that all records should be withheld and to only release them when it was unable to find any reason, however tenuous, not to do so.
During the review, the Department revised its position in respect of certain records. The applicant was informed of the changes that the Investigator considered to be material to the review and he was invited to comment. No further comments have been received from the applicant to date. As records falling within parts 4 and 5 of the request concerned a third party, the Land Development Agency (LDA), and were refused under a mandatory exemption, section 36, the LDA was informed of the review and invited to make submissions. The Investigator set out a preliminary analysis in respect of the records at issue and indicated which material was being considered for release. In response, the LDA confirmed that it did not oppose the release of the relevant information.
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 to the applicant’s comments in his application for review and to the correspondence set out above. I have also examined the records at issue. I have decided to conclude this review by way of a formal, binding decision.
Records 6c and 6d, which were refused under section 15(1)(f), are now published online and I will give them no further consideration.
Accordingly, this review is concerned with whether the Department was justified in refusing to release records 1, 1a, 3, 3a, 4, 4a, 4b, 4c, 5, 6, 6a, 6b, 7, 7a, 7b and 8 under sections 28, 29, 30 and/or 36 of the FOI Act.
Section 22(12)(b) of the FOI Act provides that when the Commissioner reviews a decision to refuse a request, there is a presumption that the refusal is not justified unless the public body "shows to the satisfaction of the Commissioner that the decision was justified". However, that is not the end of the matter. I must also have regard to the findings of the Supreme Court in The Minister for Communications, Energy and Natural Resources and the Information Commissioner & Ors [2020] IESC 57 ("the Enet Case"). In that case, the Court noted that while the presumption places an onus on the FOI body to justify refusal, that does not mean that the conclusion is always that disclosure is to be ordered. The Commissioner must adjudicate the merits of the decision to refuse by reason of an analysis of the records and the interests engaged, which might suggest either disclosure or refusal.
It is also important to note that a review by this Office is “de novo", which means that in this case, it is based on the circumstances and the law as they pertain at the time of the decision and is not confined to the basis upon which the FOI body reached its decision.
Finally, while I am required by section 22(10) of the FOI Act to give reasons for my decisions, this is subject to the requirement of section 25(3) that I take all reasonable precautions to prevent disclosure of information contained in an exempt record during the course of a review.
Part 1: Records relating to the National Children’s Hospital
The Department identified two records relevant to this part of the request, records 1 and 1a, which were refused under sections 28(1)(a), 28(1)(c), 36(1)(b) and 36(1)(c). I will consider section 28 first.
Section 28 of the FOI Act protects certain records relating to meetings of the Government, often referred to as Cabinet records.
Section 28(1)(a) of the FOI Act provides that an FOI body may refuse to grant an FOI request if the record concerned has been, or is proposed to be, submitted to the Government for its consideration by a Minister of the Government or the Attorney General and was created for that purpose. It is not a harm-based exemption such that release of a record would lead to particular consequences specified in the particular provision. There is no ‘public interest override’ in this exemption. The section provides for a class-based exemption of certain records regardless of their content. Section 28(6) provides that a record, for the purposes of section 28, includes a preliminary or other draft of the whole or part of the material contained in the record.
Section 28(1)(a) is concerned with the status of a record, i.e. its submission to the Government by a Minister or the Attorney General for consideration, and its creation for that purpose. For section 28(1)(a) to apply, a record must fulfil the following three criteria:
• The record has been (or is/was proposed to be) submitted to the Government for its consideration,
• The record has been (or is/was proposed to be) submitted by a Minister of the Government or the Attorney General, and
• The record was created for the purpose of submission to the Government for its consideration.
In its submissions, the Department said that record 1a is a memorandum created by the Department of Health for consideration at a Cabinet meeting on 12 December 2023, the title of which is “The New National Children’s Hospital Project Capital Budget”. It said that this document is the final memo for consideration at the meeting by Government and that it was not created for any other purpose other than consideration by Government. It said that it was brought into being specifically to obtain Government approval for the proposed decision sought by the Minister for Health. Having carefully considered the contents of record 1a, I accept that it was submitted to the Government for its consideration, by the Minister for Health, and was created for that purpose. I accept that section 28(1)(a) applies to this record.
Section 28(1)(c) provides that an FOI body may refuse to grant an FOI request if the record concerned contains information (including advice) for a member of the Government, the Attorney General, a Minister of State, or the Secretary General to the Government, for use by him or her solely for the purpose of the transaction of any business of the Government at a meeting of the Government. In order for the section to apply,
• the record must contain information (including advice) for a member of the Government, the Attorney General, a Minister of State or the Secretary General to the Government, and
• the information must be for use by that person solely for the purpose of the transaction of any business of the Government at a meeting of the Government.
Section 28(1)(c) is concerned with the contents and use of the record. The category of records covered by this exemption would include departmental briefing notes for individual ministers attending a Government meeting and notes prepared for the Secretary to the Government for the purposes of such a meeting and the agenda of such a meeting. The sole reason for the creation of such records is to assist the Government in the conduct of one or more of its meetings and the records would cease to have a purposeful existence after the conclusion of the meeting. The mere fact that a record contains information for discussion at a meeting of the Government does not, of itself, mean that section 28(1)(c) applies.
The Department said that record 1 is a submission to the Minister for Public Expenditure NDP Delivery and Reform created solely for the purpose of the business of the Government at the Cabinet meeting i.e. discussion of the memorandum (record 1a). It said that the record is essentially a Departmental briefing note for the Minister which summarises the contents of the memorandum and provides advice to the Minister regarding these contents. It said that the record also contains speaking points for use by the Minister at the Government meeting, which specifically and solely relate to the decision sought in the memorandum by the Minister for Health. I am satisfied, based on the contents of the record and the Department’s submissions, that record 1 contains information, including advice, for the Minister for Public Expenditure NDP Delivery and Reform for use by him solely for the purpose of the transaction of business at a meeting of the Government, specifically the meeting of 12 December 2023, such that section 28(1)(c) applies.
Section 28(3), however, provides that section 28(1) does not apply to a record:
a) if and in so far as it contains factual information relating to a decision of the Government that has been published to the general public, or
b) if the record relates to a decision of the Government that was made more than 5 years before the receipt by the head concerned of the FOI request concerned.
Therefore, in circumstances where I have found section 28(1) to apply to records 1 and 1a, I must also consider section 28(3).
In considering whether a decision of the Government has been published a number of factors may be relevant, for example, has there been an announcement of the decision of the Government in a press release, or has the Government’s actions or the actions of one of its Ministers had the effect of making the decision known generally? Factors taken into account by the Commissioner in this regard have also included a speech given by the relevant Minister and a press release which had the effect of publishing the substance of the decision to the general public. Section 28(6) also provides that a decision of government includes the noting or approving by the Government of a record submitted to them.
The term 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. The Commissioner takes the view that the use of the word “includes” in the definition of factual information means that while information of a statistical etc. nature should be regarded as factual, regard must also be had to the ordinary meaning of the term when considering its scope. The Commissioner considers that factual information would generally include, for example, material presented to provide a factual background to the central topic in a record. He also takes the view that factual information is distinguishable from information in the form of proposal, opinion or recommendation.
The effect of section 28(3)(a) is that factual information relating to a decision of the Government that has been published to the general public in a record to which section 28(1) applies is not exempt under section 28(1). Section 18(1) of the Act provides that if it is practicable to do so, access to an otherwise exempt record shall be granted by preparing a copy, in such form as the body concerned considers appropriate, of the record with the exempt information removed.
Section 18(1) does not apply, however, if the copy provided for thereby would be misleading (section 18(2) refers). This Office takes the view that neither the definition of a record under section 2 of the Act nor the provisions of section 18 envisage or require the extracting of particular sentences or occasional paragraphs from records for the purpose of granting access to those particular sentences or paragraphs. Generally speaking, therefore, I am not in favour of the cutting or "dissecting" of records to such an extent. Being "practicable" necessarily means taking a reasonable and proportionate approach in determining whether to grant access to parts of records.
The Cabinet Handbook (2006) contains guidance on the layout and contents of Memoranda for Government. It suggests that every memorandum should present factual information so that it can be easily extracted for FOI Purposes.
In its submissions, the Department said that while there is some factual information contained in the records, it does not meet both criteria set out in section 28(3)(a) because it does not relate to a decision that was published to the general public. It acknowledged that while the information at issue was in the public domain and reflected in media reports, it said that it was not known how this occurred and that it was not published via press release by the Department of Health, nor is there any clear reference to it in any speeches by the relevant Minister around that time. Having considered the matter and having conducted my own searches for relevant announcements/press releases etc, it is not apparent to me that the relevant decision made at this meeting was published to the general public. In the circumstances I find that section 28(3) does not, therefore, serve to dis-apply section 28(1).
I find that records 1 and 1a are exempt under section 28(1) and that the Department was justified in refusing to release them. There is no need to go on to consider the question of commercial sensitivity under section 36.
Part 3: Records relating to the Metrolink briefing
The Department identified two records relevant to this part of the request, records 3 and 3a, both of which were refused for release under sections 29(1) of the FOI Act. During the review, the Department also claimed that section 30(1)(c) applied.
Record 3a is a briefing note, dated 22 February 2024, prepared by the OPW for the Minister for Public Expenditure, NDP Delivery and Reform on the application for a Railway Order by Transport Infrastructure Ireland (TII) for the Metrolink, and the oral hearing by An Bord Pleanála (ABP) on the matter. Record 3 is a submission to the Minister, from officials in the Department, summarising the key points of the OPW briefing and providing high level suggested speaking points.
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 to the record concerned.
Submissions from the Department
In its submissions, the Department said that both records “meet the definition of deliberations as they constitute opinions, advices and suggested speaking points regarding the OPW’s position on the proposed development”. It said that these deliberations took place in advance of an oral hearing which was convened by ABP as part of public consultation underpinning the Railway Order planning process underpinning the development of the Metrolink project.
The Department said that it would be contrary to the public interest to compel release of the records at this stage. It said that in order for public bodies such as the OPW to carry out their statutory functions, from time to time they require privacy in order to deliberate both internally and with other public bodies in order to reach a sufficiently well-reasoned policy position. It said that should FOI bodies be compelled to disclose such deliberations prematurely, it would have a negative impact on public policy formulation and the effectiveness with which public bodies participate in public consultations underpinning planning processes such as this one.
The Department acknowledged that the specific oral hearing has since concluded, but it said that a further oral hearing has been held by ABP and further public consultations in this regard cannot be discounted. It said that given that the planning application remains under consideration, the Department and the OPW may require recourse to further deliberations in order to engage further with the process and update the policy position in response to further information which may be submitted. It said that therefore the timing of release is an important consideration when examining the public interest arguments at play. The Department also submitted that no exceptional circumstances are present which would mandate release of the records at this stage.
Analysis
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 records 3 and 3a and the submissions, I am prepared to accept that they each contain matter relating to the deliberative process of an FOI body, specifically they relate to ABP’s decision-making on the application for the Railway Order for the Metrolink project, and the OPW’s input into that process. 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, as I understand it from the information available at www.metrolinkro.ie, the application process for the Railway Order is ongoing. As indicated by the Department, however, the specific oral hearing referenced in the records is complete, and ABP subsequently directed that TII provide for a secondary public consultation period. This consultation period closed on 8 October 2024.
I have carefully considered the Department’s arguments and the contents of the records at issue, and I cannot reconcile the harms to the public interest envisaged by the Department with the actual contents of the records. While mindful of the constraints of section 25(3), I think I can reasonably say that the records contain a high-level summary of the OPW’s engagement with ABP and TII in the context of the Railway Order application, and the matters that it raised in its submissions to ABP. In the appendix to record 3a, the OPW lists the submissions made to ABP. The Metrolink website, referenced above, contains extensive information about the Railway Order application process, including responses to submissions received under the statutory consultation process and documents submitted during the oral hearing, including witness statements. I note, for example, that under the section on the website headed “TII’s response to submissions on the DRAFT Railway Order Application”, there are a number of documents which list the submissions received, including those made by the OPW, and contain details of the contents of those submissions, in order to respond to them. Furthermore, under the heading submitted “Documents submitted during Oral Hearing”, a letter from TII to the OPW addressing various issues raised in the submissions is available to download.
While I do not dispute the Department’s position that public bodies sometimes need time and space to deliberate on public policy issues, I simply cannot see how the release of these particular records, whose content, as far as I can see, is broadly publicly available already, could be seen as prematurely disclosing the deliberations of any of the parties involved. It seems to me that the Railway Order application process is very much being conducted in public and records 3 and 3a provide a convenient overview, for the Minister, of information that is already in the public domain. I am not satisfied that the Department has explained, and nor is it apparent to me, how release of these records could have a negative impact on public policy formulation or on participation by public bodies in consultation processes, such that release could be deemed to be contrary to the public interest. For completeness, I should also add that 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.
For all of the above reasons, I find that section 29(1)(b) does not apply, and that therefore the records are not exempt under section 29(1).
Section 30(1) of the FOI Act protects certain records relating to the functions of FOI bodies. 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.
The Department said that section 30(1)(c) applied to the records. 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 and it is sufficient that access to the record concerned could reasonably be expected to disclose such negotiation positions, plans etc.
Submissions from the Department
The Department said that record 3a indicates that the OPW intends to work towards an agreement with TII to resolve outstanding matters raised. It said that this points to the need for further negotiation between both parties in order to arrive at such an agreement and that as the planning application remains under consideration, it cannot be discounted that further engagement and negotiation will be required between both parties. It said that premature disclosure of positions and views could negatively impact an FOI body’s ability to negotiate effectively with a view to best discharging its statutory functions. It therefore submitted that premature disclosure would, on balance, be contrary to the public interest.
Analysis
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.
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).
I refer to my analysis of records 3 and 3a under section 29, above, and my findings that the substantive information contained in the records is already in the public domain. While I am prepared to accept that the OPW and TII may need to continue to negotiate in respect of certain aspects of the planned Metrolink, it is not evident to me either from the submissions provided by the Department or from an examination of the records themselves, that their release would disclose positions taken or to be taken by the OPW. This is in circumstances where the concerns raised by the OPW in respect of the Metrolink have already been communicated to the TII in the submissions made as part of the Railway Order application process. Neither am I satisfied that release of the records would disclose any plans, procedures, criteria or instructions used or followed, or to be used or followed, for such negotiations. I am not satisfied that section 30(1)(c) applies to records 3 or 3a. There is no need to consider the public interest under section 30(2).
I find that the Department has not justified its refusal of records 3 or 3a, and I direct their release.
Part 4: Records relating to the transfer of state lands
By way of background, the Land Development Agency (LDA) describes itself as a commercial, State-sponsored body that has been created to coordinate land within public control to provide affordable and social homes and build communities across the nation.
The Department identified four records relevant to this part of the request, records 4, 4a, 4b, and 4c, which it refused under sections 36(1)(a), (b) and (c). At internal review stage, the Department said that records 4b and 4c were also exempt under sections 28(1)(a) and 28(1)(c), and in submissions to this Office it said that section 28 was also applicable to records 4 and 4a.
Record 4b is a draft Memorandum for Government from the Minister for Housing, Local Government and Heritage dated 17 January 2024; record 4 is a submission to the Minister for Public Expenditure, NDP Delivery and Reform with observations on the draft Memorandum; record 4a is a one-page document containing a table entitled “DPENDR Summary of LDA Direct Delivery Schedule, January 2024”. Record 4c contains the same text as record 4a albeit with different formatting; I will not give it separate consideration. I will consider section 28 first.
I refer to my explanation of section 28, and the approach taken by this Office to it, under part 1 above. Having examined the record, I accept that record 4b is a draft Memorandum for Government, created for the purpose of submission to the Government for its consideration, by the Minister for Housing, Local Government and Heritage. I find that section 28(1)(a) applies to this record.
The Commissioner has accepted that submissions from Ministers and/or Departments made in response to another Department’s invitation for observations on a draft Memorandum for Government are also exempt under section 28(1)(a). In taking this approach, the Commissioner has had regard to the Cabinet Handbook which contains instructions for the preparation and submission of memoranda for Government. Having examined record 4, I am satisfied that it contains such observations on a draft Memorandum for Government, approved by the Minister for Public Expenditure NDP Delivery and Reform, for consideration by the Minister for Housing, Local Government and Heritage. I find therefore that section 28(1)(a) also applies to record 4.
In response to queries about the purpose for which record 4a was created and when it was given to the Minster, the Department said that it was specifically created by a section of the Department as an appendix to the briefing to the submission to the Minister. It said that “release of the individual appendix would be out of context, given that the record was created to provide additional Ministerial briefing for a Memo for Government.” Based on this explanation, I understand that the record was created as an additional resource for the Minister in his consideration and approval of the observations on the draft Memorandum for Government included in record 4. As such, I am satisfied that it was not given to the Minister for use solely by him at a meeting of the Government, and that section 28(1)(c) does not apply. Neither was it submitted, or proposed for submission, to the Government for its consideration and I am satisfied that section 28(1)(a) does not apply either. No submissions have been made in respect of section 28(1)(b) and I am satisfied that it does not apply. I find that record 4a is not exempt under section 28.
As I have found that section 28(1)(a) applies to records 4 and 4b, I must go on to consider section 28(3). Given the age of the records, section 28(3)(b) cannot apply. In relation to section 28(3)(a), the Minister for Housing, Local Government and Heritage answered a question in the Dáil on 16 April 2024 on progress by the LDA in developing active sites and State lands with development potential. Among other specific updates, he referred to recommendations that were made to and agreed by Government in February 2024, to transfer a further nine state owned sites to the LDA for the development of affordable and social housing, spread across locations in Dublin, Waterford, Limerick, Cork and Galway, which he said collectively have the potential to deliver over 3,000 homes. In these circumstances and having regard to the content of records 4 and 4b, I am satisfied that they contain information that relates to a decision of the Government that has been published to the general public, and I must therefore consider whether the records contain factual information relating to that decision.
The Department acknowledged that the records contained factual information “which the Minister referred to” such that it could be released under section 28(3)(a) but it said that the records have been refused in their entirety and that part-release would not have resulted in the disclosure of any new information. For the avoidance of doubt, the test at section 28(3)(a) is whether the record contains factual information relating to a decision of the Government that has been published, not whether the factual information itself has already been published, in a decision of the Government or otherwise. Whether release would result in the disclosure of new information, or not, is irrelevant.
Having carefully examined records 4 and 4b, I find that record 4b contains factual information relating to the published decision referenced above. I find that section 28(1)(a) does not apply, by virtue of the provisions of section 28(3)(a), to such factual information contained in record 4b, specifically:
• 2. Background Reason, first two paragraphs (as far as ‘development’)
• 3. Other Relevant Information (in full)
• 5. Housing for All Additional sites, first paragraph (as far as ‘sites’)
• 6. Report on Relevant Public Lands, first two sections (as far as ‘Business Plan 2023-2032’ on the middle of page 7).
I find, therefore, that the Department was justified, under section 28(1)(a) in refusing to release records 4 and 4b, apart from the factual information relating to a published decision that is set out above.
It is the Department’s position that records 4, 4a and 4b are also exempt under section 36(a), (b) and (c). I will therefore consider this exemption in respect of the records that I have found not to be exempt under section 28 i.e. record 4a and the factual information contained in record 4b.
Section 36 is a mandatory exemption for the protection of commercially sensitive information. It is subject to a public interest test at section 36(3). Section 36(1) provides that a head shall refuse to grant an FOI request if the record concerned contains:
a) trade secrets of a person other than the requester concerned,
b) financial, commercial, scientific or technical or other 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, or
c) information whose disclosure could prejudice the conduct or outcome of contractual or other negotiations of the person to whom the information relates.
Submissions from the Department
The Department made brief submissions in respect of section 36. It said that in line with the public interest test which was provided to the requester as part of the original decision, the LDA continues to acquire lands on behalf of the State and that any insight into the LDA’s processes in this regard would harm how it does business, and in turn increase costs to the State. It said that “this is the commercially sensitive information or trade secrets contained in the records”. It said that it includes transfers which will not be complete until 2027/2028, partnerships with local authorities, and delivery not scheduled until 2029 – 2031. It said that the competitive position of the LDA could be prejudiced by disclosure of this information.
In the original decision issued, the Department said in respect of these records that the public harm from release outweighs the public interest in its release. It said that making public this record would reduce the LDA’s competitive advantage in the marketplace and could result in higher costs/reduced output. It said that as the LDA is a commercial semi-state body which is presently funded by the State, the release of the record could directly affect the value and use of public monies.
As noted above, the LDA was notified of the review and provided with an opportunity to make submissions in respect of records which may affect its interests. In response, it confirmed that it had no objection to the release of the relevant information.
Analysis
Before examining each of the sub-sections of section 36, I will give a high-level description of the information at issue. Record 4a contains a table with a list of sites under development by the LDA and the estimated number of units to be developed plotted against a timeline from 2024 to 2031. The factual information identified in record 4b includes background information to the LDA, a summary of the relevant legislation, and references to the Report on Relevant Public Lands that was published in 2023. It is relevant to note that the LDA publishes detailed information on its website about sites that it has acquired and the progress it is making in building homes on these sites. Furthermore, the Housing for All policy and plan publishes statistics and quarterly progress reports that, it seems to me, contain significantly more detail than the information under consideration here.
In respect of section 36(1)(a), the Commissioner has accepted that a trade secret is information used in the trade or business which, if disclosed to a competitor, would be liable to cause real (or significant) harm to the owner of the secret and that the owner must limit the dissemination of it or at least not encourage or permit widespread publication. The Commissioner also accepts that an exact definition of trade secret is not possible and that some factors to be considered in determining whether information is a trade secret are:
1. the extent to which the information is known outside of the business concerned;
2. the extent to which it is known by employees and others involved in the business;
3. the extent of measures taken by the business to guard the secrecy of the information;
4. the value of the information to the business and to its competitors;
5. the amount of effort or money expended by the business in developing the information;
6. the ease or difficulty with which the information could be properly acquired or duplicated by others.
The Department did not specify which information contained in the records it considered to be a trade secret, and nor is it apparent to me that it there is any such information within record 4a or within the factual information identified in record 4b. I cannot see how release of these records could lead to the disclosure of otherwise unknown information about how the LDA “does business” that would be of value to competitors to the LDA. I find that section 36(1)(a) does not apply.
In respect of section 36(1)(b), the essence of the test is not the nature of the information but the nature of the harm which might be occasioned by its release. The harm test in the first part of section 36(1)(b) is that disclosure “could reasonably be expected to result in material loss or gain”. This Office takes the view that the test to be applied is not concerned with the question of probabilities or possibilities but with whether the decision maker’s expectation is reasonable. The harm test in the second part of section 36(1)(b) is that disclosure of the information “could prejudice the competitive position” of the person in the conduct of their business or profession.
From its submissions, the Department appears to be relying on the second limb of section 36(1)(b). The standard of proof to be met here is considerably lower than the “could reasonably be expected” test in the first part of the exemption. However, this Office takes the view that, in invoking “prejudice”, the damage which could occur must be specified with a reasonably degree of clarity. The Department said that releasing the record would reduce the LDA’s competitive advantage and could result in higher costs/reduced output. It did not explain how it envisaged this happening or point to any specific information in the records which it considered could lead to this result. I refer to my description above of the high-level nature of the information at issue, much of which is already in the public domain. I note again that the LDA itself has not objected to release. Notwithstanding the relatively low bar for the second part of section 36(1)(b) to apply, I simply cannot see how release of the information concerned could prejudice the competitive position of the LDA. I find that section 36(1)(b) does not apply.
In respect of section 36(1)(c), the standard of proof required to meet this exemption is, again, relatively low in the sense that the test is not whether prejudice or harm is certain to materialise but whether it might do so. Having said that, the Commissioner expects that a person seeking to rely on this exemption would be able to show that contractual or other negotiations were in train or were reasonably foreseen which might be affected by the disclosure and explain how exactly the disclosure could prejudice the conduct or the outcome of such negotiations. While it did not explicitly say so, it seems to me that the Department’s position in respect of section 36(1)(c) is that release of the records could prejudice negotiations by the LDA in acquiring lands on behalf of the State. Again, I refer to the specific information under consideration which is high level and non-specific and largely in the public domain. The Department has not explained how release of any of this information could prejudice the conduct or outcome of contractual or other negotiations by the LDA, and nor is it apparent to me. I find that section 36(1)(c) does not apply.
As I have found section 36(1) not to apply to the records, there is no need to consider the public interest test at section 36(3).
I find, overall, that the Department has not justified its refusal of record 4a or the factual information contained in record 4b, under sections 28 or 36 of the FOI Act, and I direct their release.
Part 5: Records relating to the LDA business plan
One record was identified under this part of the request, record 5, which is a submission entitled “Ministerial views on the LDA Business Plan”. This was refused for release under section 28(1)(c). During the review, the Department altered its position in respect of this record and said that instead it was exempt under section 36(1)(b).
I refer to my explanation of section 36(1)(b) under part 4, above. In its submissions, the Department said that record 5 contains information concerning the funding of the LDA, shareholder equity and commercial delivery. It said that the LDA Business Plan “covers the years 2024 to 2028 and would identify the work plans and commitments of this commercial Semi-State body”. It said that publishing the submission would provide an insight into how the LDA runs its business and could also provide details of its negotiating strategy which it said would be contrary to the public good, as it would reduce the competitiveness and effectiveness of the LDA.
In order for section 36(1)(b) to apply, the record must contain financial, commercial, scientific or technical or other 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. It appears that the Department is relying on the second part of section 36(1)(b) i.e. that release of certain information could prejudice the LDA’s competitive position.
It is important to note that the record does not contain the LDA Business Plan which I understand has not been published. Rather, it contains observations, approved by the Minister, on the draft plan, to be given to the LDA, as required in the Code of Practice of the Governance of State Bodies. Having carefully reviewed the record, it seems to me that the majority of the information contained within it is high level and reflective of information already in the public domain, including in responses to questions on the LDA in Dáil Éireann by the Minister for Housing, Local Government and Heritage, and published by the LDA itself and I am not satisfied that release of this information could prejudice the LDA’s competitive position. Having regard to the Department’s submissions, it is not apparent to me that the record discloses any work plans or specific commitments of the LDA and these have not been identified by the Department. I accept, however, that there is a small amount of specific information in the record relating to funding and shareholder equity that, as far as I can see, has not been made public by the LDA itself or, for example, the Minister for Housing, Local Government and Heritage and, given the relatively low standard of proof required by the second part of section 36(1)(b), I am prepared to accept that its release could prejudice the competitive position of the LDA. Specifically, this information is contained in:
• Executive Summary:
o Third paragraph, second sentence (from ‘The Plan’ to ‘date’)
o Fourth paragraph, first sentence (from ‘The Plan’ to ‘bn’)
• Detailed information: fourth paragraph, last sentence (from ‘I also’ to ‘delivered’)
As noted above, the LDA has not objected to the release of the remaining information in the record. Apart from the specific information above, I do not accept that the remainder of the record is exempt under section 36(1)(b).
However, that is not the end of the matter, as sections 36(2) and 36(3) provide for the release of information to which section 36(1) is found to apply in certain circumstances. Accordingly, I must consider whether sections 36(2) or (3) disapply section 36 to the limited information which I have found to be commercially sensitive above.
I am satisfied that none of the circumstances identified at section 36(2) arises in this case. Section 36(3) provides that section 36(1) does not apply to a case in which the FOI body considers that the public interest would, on balance, be better served by granting than refusing to grant the request. The question I must consider is whether the public interest would, on balance, be better served by granting than by refusing access to the information to which I have found section 36(1)(b) to apply.
In considering where the balance of the public interest lies in this case, I have had regard to section 11(3) of the FOI Act which provides that in performing any functions under the Act, an FOI body must have regard to, among other things, the need to achieve greater openness in the activities of FOI bodies and to promote adherence by them to the principles of transparency in government and public affairs and the need to strengthen the accountability and improve the quality of decision making of FOI bodies. However, in doing so, I have also had regard to the judgment of the Supreme Court in the Enet case. In that case, the Supreme Court found 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”. Moreover, the Court found that section 36(1) recognises that there is a public interest in the protection of commercial sensitivity and that this may be normally served by the operation of the exemption itself, which provides for the refusal of an FOI request.
The applicant did not make submissions in relation to the public interest in respect of this record. The Department said that release of the record would reduce the LDA’s competitive advantage in the marketplace which could result in higher costs/reduced output and that, essentially, this would be contrary to the public interest as the LDA is a commercial semi-state body, presently funded by the State.
I have carefully considered the information to which I have found section 36(1)(b) to apply. I accept that release of the information would increase, to a small extent, the public’s understanding of the funding of the LDA, and the approach to shareholder equity, and the Minister’s approach in this regard. On the other hand, having found that the release of the information could prejudice the competitive position of the LDA, it seems to me that there is a weightier public interest in ensuring that the LDA can endeavour to remain competitive and obtain value for money in order to maximise the supply of affordable and social homes on public land in a financially sustainable manner.
On balance, I am not satisfied that any sufficiently specific, cogent and fact-based reason to tip the balance in favour of disclosure of the information at issue exists. I find, therefore, that section 36(3) does not apply and that the Department was justified in withholding the specified information I have set out above under section 36(1)(b). I find that it was not, however, justified in refusing the rest of the record and I direct its release.
Part 6: Records relating to the OPW capability review
The Department identified five records relevant to this part of the request, records 6, 6a, 6b, 6c and 6d. Records 6 and 6b were refused under section 28(1)(c) and record 6a was refused under section 28(1)(a). Records 6c and 6d were refused under section 15(1)(f) and have both been published online in the interim. Records 6c and 6d fall outside the scope of this review, however it is relevant to note that the records consist of an Organisational Capability Review (OCR) of the OPW dated November 2023, and associated OCR Action Plan, dated March 2024.
In its submissions, the Department said that record 6a is a Memorandum for Government which was submitted by the Minister for Public Expenditure, NDP Delivery and Reform to the Government and was created for that purpose. It said that the memorandum asks the Government to note the OPW’s OCR and its associated action plan, and to approve both documents for publication. It said that records 6 and 6b were prepared for the Minister, solely for the purpose of the transaction of business of the Government at a meeting of the Government.
I refer to my description of section 28 and the approach taken by this Office to section 28, as set out in this decision under part 1 of the request. Having carefully examined the records and taken into account the Department’s description of the context in which they were created, I am satisfied that record 6a was submitted by the Minister to the Government for its consideration, and was created for that purpose, such that section 28(1)(a) applies. I am also satisfied that records 6 and 6b contain information for the Minister for use by him solely at the meeting of the Government at which the memorandum was considered.
The Department did not, however, address section 28(3) which provides for certain circumstances in which section 28(1) does not apply. As noted above, the Minister sought cabinet approval for the publication of the two documents, both of which have been subsequently published. In these circumstances, I am satisfied that the records contain information that relates to a decision of the Government that has been published to the general public, and I must therefore consider section 28(3)(a) and whether the records contain factual information relating to that decision. I refer to the definition of factual information, and the approach taken by the Commissioner, under part 4 of the request, above.
Much of the information contained in records 6, 6a and 6b comprises an account of the contents of the OCR and the action plan, the vast majority of which, in my view, is a factual recounting of that information. In fact, most of the text appears to have been taken directly from the published documents (records 6c and 6d). I find that section 28(1)(a) does not apply, by virtue of the provisions of section 28(3)(a), to such factual information, specifically:
• Record 6:
o Paragraph headed Executive Summary, as far as “achieve it” (on page 1)
o Paragraph headed Detailed Information, as far as “and business support functions” (that is underlined) (on pages 1 and 2)
o List of recommendations (on pages 3 and 4)
• Record 6a:
o Section 2: Background (2.1 – 2.5 inclusive)
o Section 4: Next Steps
o Note for the Information of the Minister
• Record 6b:
o Record in its entirety (this is also fully contained within record 6a under Note for the Information of the Minister)
I find, therefore, that the Department was justified under section 28 in refusing access to the records relating to the OPW capability review, apart from the factual information set out above.
Part 7: Records relating to Global Ireland new diplomatic missions
The Department identified three records relevant to part 7 of the request, which it refused under sections 28(1) and 28(2) of the FOI Act.
Record 7 is a submission to the Minister with observations on a Memorandum for Government. Record 7a is an email, the text of which is contained in its entirety in record 7. I therefore will give no separate consideration to record 7a. Record 7b is a draft Memorandum for Government dated 27 February 2024.
I refer to my description of sections 28(1) under part 1 of the request. Section 28(6) provides that in this section, a record includes a preliminary or other draft of the whole or part of the material contained in the record. Having examined the record, I accept that record 7b is a draft Memorandum for Government, created for the purpose of submission to the Government for its consideration, by the Minister for Foreign Affairs. I find that section 28(1)(a) applies to the record. As noted under the analysis of part 4 of the request, the Commissioner has accepted that submissions from Ministers and/or Departments made in response to another Department’s invitation for observations on a draft Memorandum for Government are also exempt under section 28(1)(a). Having examined record 7, I am satisfied that it contains such observations, on the draft Memorandum for Government, approved by the Minister for Public Expenditure NDP Delivery and Reform, for consideration by the Minister for Foreign Affairs. I find therefore that section 28(1)(a) also applies to record 7.
I must therefore go on to consider section 28(3)(a). In its submissions, the Department said that “the factual information was not released as the Government Decision had not been published”. It is not clear to me why the Department has taken this position when a press release was issued on 5 March 2024 by the then-Tánaiste and Minister for Foreign Affairs, announcing Government approval for the opening of three new embassies and two new consulates general, which was then reported in the media. I find that the records do contain factual information relating to a decision of the Government that has been published to the general public and that section 28(1)(a) does not apply to such factual information, by virtue of the provisions of section 28(3)(a). Having regard to section 18, I find that the following is factual information relating to the published decision:
• Record 7:
o Executive Summary (six lines, as far as 2026)
o Under Detailed Information, 1. Background
• Record 7b:
o Under 2 Background Reason, first five paragraphs (as far as ‘closely together’)
o 7 Public Announcement
For completeness, I will consider whether section 28(2) applies to the records, notwithstanding that the Department made no submissions to this Office on it. Section 28(2) provides for the mandatory refusal of a request if the record concerned—
(a) contains the whole or part of a statement made at a meeting of the Government or information that reveals, or from which may be inferred, the substance of the whole or part of such a statement, and
(b) is not a record—
(i) referred to in paragraph (a) or (c) of subsection (1), or
(ii) by which a decision of the Government is published to the general public by or on behalf of the Government.
The exemption is concerned with the protection of Cabinet discussions or deliberations at Government meetings. Article 28.4.3° of the Constitution provides for the confidentiality of discussions at meetings of the Government. An FOI body relying on section 28(2) for its refusal to grant access to a record must show that the record concerned contains a statement made at a Government meeting or contains information which reveals the substance of such a statement or from which such a statement may be inferred. As described above, record 7b is draft Memorandum for Government, and record 7 is a submission to the Minister with observations on the draft. It appears that both records were created in advance of the Cabinet meeting to which they pertain and while the records reflect positions taken by the relevant Ministers prior to the meeting, they do not record the actual discussions that take place and nor is it apparent to me that they contain information that reveals, or from which it may be inferred, the substance of any statements made at that meeting. I find that section 28(2) does not apply.
I find, therefore, that the Department was justified, under section 28(1)(a) in refusing to release records 7, 7a, and 7b, apart from the factual information relating to a published decision that is set out above.
Part 8: Record relating to MATS
The Department identified one record relevant to this part of the request, a submission to the Minister, dated 17 November 2023, containing an update on the MATS (Ministerial Air Transport Service). The Department refused this record under sections 29(1) and 36(1)(c). In submissions to this Office, it said that section 30(1)(c) was also relevant.
Submissions from the Department
The Department said that the deliberative process in this instance was the consideration of proposals including opinions and advice in respect of the future provision of the MATS, by the Department of Defence.
It said that release of the record concerned would lead to the requester becoming aware of the FOI body’s deliberations, thinking processes and potential alternative options in relation to a significant decision that the Department of Defence proposed to make. It said that while the first stage of the tender competition was the publication of a contract notice and issuance of a Pre-Qualification Questionnaire on the Official Journal of the European Union (OJEU) platform (which involved the publication of the high level description of the requirement to purchase a new midsize aircraft), it said that this did not involve publication of the deliberative process of the FOI body, and potential alternative policy options which might fall to be considered should the tender process not have a successful final outcome.
It went on to say that granting the request would be contrary to the public interest as a tender process had commenced at the time of the request to purchase a new mid-size aircraft for use by the MATS, and it said that release of the record concerned would lead to the requester becoming aware of the FOI body’s deliberations and potential alternative policy options which might fall to be considered should the tender process not have a successful final outcome. It said that release of the record would have disclosed relevant details of an FOI body’s deliberations which would impair the integrity and viability of the decision-making process in respect of the tender process and would not have a countervailing benefit to the public, given that a competitive tender competition was already underway to acquire a replacement for the existing MATS aircraft.
In response to a question about whether now, given the passage of time, the Department could consider releasing some of the records, it said that “given the passage of time an alternative decision might be taken to the release of this record in whole or in part, as the competitive procurement process has concluded and a contract was awarded by the Department of Defence on 18 December 2024”. It then included a link to a press release dated 18 December 2024, wherein the Tánaiste announced the awarding of the contract to purchase a new jet.
Analysis
I refer to the approach taken by this Office in respect of section 29, as set out under my consideration of part 6 of the request.
The record at issue is a submission to the Minister, for information, providing an update on the Department of Defence’s plans to move towards a tender process for the replacement of the aircraft used for the MATS. As noted earlier, reviews by this Office are de novo, so it is important to acknowledge the current circumstances, which is set out in the press release referred to by the Department in its submissions, i.e. that the tender process has concluded, the contract has been awarded, and a new aircraft is expected to be delivered in December 2025.
Having carefully examined the record, I accept that it relates to the deliberative process of the Department of Defence as it decided how to best provide the MATS into the future. I accept that section 29(1)(a) applies. In order for the record to be exempt under section 29, section 29(1)(b) must also apply i.e. the granting of the request must be contrary to the public interest. Notwithstanding the current developments, even at the time that FOI request was made, in May 2024, it was almost six months since the competitive bidding process had commenced with the publication of a contract notice on the OJEU (on 17 November 2023). In these circumstances, I cannot accept that release would be contrary to the public interest by reason of the fact that the requester would become aware of a significant decision that an FOI body intended to make.
In response to the Department’s argument that release of the record would disclose alternative options, should the tender process not have a successful outcome, while I accept that the record does disclose an alternative to purchasing a new aircraft, the current situation is that a contract has been signed for its purchase. Furthermore, it appears to me that the alternative option considered has been widely reported in the media, and indeed the Department of Defence has released under FOI the final business case containing the detailed analysis in support of the decision to go to tender for the purchase of a new aircraft. While the business case was released with some redactions, it contains significantly more detail than is included in the record at issue in this case and sets out all options considered including the alternative option referred to in record 8. In respect of the contention that release of the record would impair the integrity and viability of the deliberative process, the Department has not explained how it envisages this happening and it is not apparent to me from an examination of the record or a consideration of the submissions. I am confused by the Department’s acknowledgement that “an alternative decision might be take”, given the passage of time, and subsequent developments, but then not actually altering its position. For all of these reasons, I am not satisfied that the Department has shown that release of the record would be contrary to the public interest. I find, therefore, that the record is not exempt under section 29.
As set out under the analysis of part 4, section 36(1) provides a mandatory exemption for what is generally described as “commercially sensitive” information. It is subject to a public interest test, as set out in section 36(3).
The Department refused to release the record under section 36(1)(c) which provides for the refusal of a request if the record sought contains information whose disclosure could prejudice the conduct or outcome of contractual or other negotiations of the person to whom the information relates. The standard of proof required to meet this exemption is relatively low in the sense that the test is not whether prejudice or harm is certain to materialise but whether it might do so. Having said that, the Commissioner expects that a person seeking to rely on section 36(1)(c) would be able to show that contractual or other negotiations were in train or were reasonably foreseen which might be affected by the disclosure and explain exactly how the disclosure could prejudice the conduct or the outcome of such negotiations.
As a general principle, the Commissioner takes the view that section 36 is primarily aimed at protecting the commercial interests of parties engaged in commercial activity. He has found that there is some uncertainty as to the position of FOI bodies under section 36. However, depending on the circumstances of the case, the Commissioner has accepted that the FOI Act does not prohibit an FOI body, either as a decision-making body or as a third party applicant to his Office, from relying on the provisions of section 36.
Submissions from the Department
The Department said that if the record was released in advance of finalising the contract between the Department of Defence and a successful bidder in the tender process to acquire a MATS replacement aircraft, that the contractual negotiations could be prejudiced. It said that release of the record concerned would lead to the applicant, and potential tenderers, potentially becoming aware of the FOI body’s deliberations, policy position and potential alternative options, while the competitive process was ongoing. It said that release of the record could prejudice the successful outcome of the competitive procurement process and finalisation of the contract, or future contract negotiations.
On the public interest, it said that in favour of release, it took into account: the public interest in enhancing the accountability of government, maximum openness, transparency, accountability and value for money in the use of public funds. Against release, it said it took into account that the Department of Defence should not be unduly impeded in the effective pursuit of its business, that that there was a public interest in an FOI body being able to make informed decisions in the course of carrying out its functions and being able to maintain the confidentiality of their deliberative process in some circumstances, particularly where those deliberative processes related to ongoing negotiations.
The Department also said that in reaching the decision to refuse this record, it considered the matter of timing and the information which had been published and was scheduled for publication and was already in the public domain. It noted that the first stage of the tender competition necessitated the publication of a contract notice and issuance of a Pre-Qualification Questionnaire setting out a high-level description of the requirement and that the publication of the estimated cost for any proposed contract is a legal requirement under the Defence and Security Directive.
Analysis
The Department has sought to rely on section 36(1)(c) for the purposes of protecting the commercial interests of the Department of Defence, rather than its own interests or indeed the interests of a third party. I accept that it is entitled to do this, notwithstanding that it must show how disclosure of the record could prejudice the conduct or outcome of relevant negotiations. I refer to my previous comments in respect of the de novo nature of reviews by this Office, the current situation i.e. that the relevant contract has been finalised, and information that has been released into the public domain already. I have taken the current circumstances into account, as well as the actual content of the record which, it seems to me, remains quite high level and is generally in the public domain already. Even with the relatively low standard of proof required for section 36(1)(c), I am not satisfied that the Department has shown how its release could prejudice the conduct or outcome of any negotiations. I find that section 36(1)(c) does not apply. There is no need to consider the public interest.
The Department claimed that the record was also exempt under section 30(1)(c). I refer to the requirements of section 30(1)(c) as set out under my analysis of the Department’s decision on part 6 of the request. There are some similarities to section 36(1)(c), however it does not contain a harm test. It is sufficient that access to the record concerned could reasonably be expected to disclose such negotiation positions, plans etc.
The Department said that section 30(1)(c) was applicable because the release of record 8 would disclose the internal negotiating position of the Department of Public Expenditure NDP Delivery and Reform in relation to these and potentially similar future proposals. I refer to my analysis of record 8 under section 29 and 36 above, and the current circumstances in respect of the contract and information in the public domain. It is not apparent to me, from an examination of the contents of the record, that it discloses the negotiating position of the Department of Public Expenditure NDP Delivery and Reform, or indeed of the Department of Defence. Nor is it apparent to me that it discloses plans, procedures, criteria or instructions to be followed for the purpose of any such negotiations.
I find that section 30(1)(c) does not apply and there is no need to go on to consider the public interest under section 30(2)
I find, overall, that the Department has not justified its refusal of record 8 under section 29, 30(1)(c) or 36(1)(c) of the FOI Act.
Having carried out a review under section 22(2) of the FOI Act, I hereby vary the Department’s decision:
• Part 1: I find that it was justified in refusing, under section 28, records 1 and 1a.
• Part 3: I find that it was not justified in refusing, under sections 29 or 30, records 3 and 3a and I direct their release.
• Part 4: I find that it was justified in refusing, under section 28, records 4, 4b and 4c, apart from the specified factual information contained in record 4b. I find that it was not justified in refusing, under section 28 or 36, record 4a. I find that it was not justified, under section 36, in refusing the specified factual information contained in record 4b. I direct the release of record 4a in full, and the specified factual information in record 4b.
• Part 5: I find that it was justified in refusing, under section 36, certain specified information contained within record 5. However, I find that it was not justified in refusing the remainder of the record and I direct its release.
• Part 6: I find that it was justified in refusing, under section 28, records 6, 6a and 6b, apart from the specified factual information in the three records of which I direct release.
• Part 7: I find that it was justified, under section 28, in refusing to release records 7, 7a, and 7b, apart from the specified factual information of which I direct release.
• Part 8: I find that it was not justified in its refusal of record 8 under section 29, 30 or 36 of the FOI Act, and I direct its 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 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