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Whether the Council was justified in its decision to refuse access to records of Council management meetings on the basis that sections 29, 30(1)(b), 36(1)(c) and 40(1)(d) of the FOI Act applied

Conducted in accordance with section 22(2) of the FOI Act by Elizabeth Dolan, Senior Investigator, who is authorised by the Information Commissioner to conduct this review

Background

In his FOI request of 13 July 2015, the applicant sought access to "the minutes of the meetings of the executive/management team of Roscommon County Council for the months of February, March, April, May and June 2015, inclusive". In its decision of 7 August 2015, the Council identified eight records as relevant to the request and partially granted access to them. It refused access to parts of each record on the basis that sections 29, 30(1)(a), 30(1)(b), 30(1)(c), 36(1)(a) and 40(1)(a) and 40(1)(b) of the FOI Act applied. The applicant submitted an internal review request on 13 August 2015, received on 20 August 2015. The Council's internal review decision of 9 September 2015 affirmed the original decision. The applicant submitted an application for review to this Office on 25 September 2015.

During the course of the review, the Council revised its position and agreed that further parts of the records should be released. It also revised its position on the exemptions being claimed for the parts of the records which it maintained are exempt from release.

In conducting this review, I have had regard to the submissions of the applicant, to the submissions of the Council, to the content of the records and to the provisions of the FOI Acts. I have decided to conclude the review by making a formal, binding decision.

Scope of Review

The review relates solely to whether the decision of the Council to refuse access to the information sought was justified on the basis of the exemptions claimed. In view of the revised position of the Council, the scope of the review is limited to that information which the Council has not released, as follows:

Record - Brief Description - Redactions - Basis for refusal by Council

1. Minutes of 9 February 2015 1 para on page 1 29(1)(a), 30(1)(b)
2. Minutes of 20 February 2015 1 para on page 1 29(1)(a), 30(1)(b), 30(1)(c)
3. Minutes of 6 March 2015 part of 1 para on page 1 29(1)(a), 30(1)(b), 30(1)(c)
4. Minutes of 20 April 2015 2 paras on page 2 36(1)(b)
5. Minutes of 1 May 2015 business name on page 1
content of section headed "Labour Court Recommendation" on page 2 36(1)(b)
29(1)(a), 30(1)(b), 30(1)(c)
7. Minutes of 5 June 2015 parts of section headed "Housing Repairs" on page 2 29(1)(a), 30(1)(b)
8. Minutes of 22 June 2015 some text under heading "Furniture" 29(1)(a)
some text under heading "Archiving of files" 29(1)(a)
some text under heading "Housing Repairs" 29(1)(a), 30(1)(a), 30(1)(b)
some text under "AOB - Phone Upgrades" 36(1)(b)

Preliminary Matters

Section 18
I should explain the approach to the granting of access to parts of records. Section 2 of the FOI Act defines "record" as including "anything that is a part or a copy" of a record. Section 18 of the FOI Act provides for the deletion of exempt information and the granting of access to a copy of a record with such exempt information removed. This should be done where it is practicable to do so and where the copy of the record thus created would not be misleading.

Section 22
Section 22(12)(b) of the FOI Act provides that a decision to refuse to grant access to a record "shall be presumed not to have been justified unless the head concerned shows to the satisfaction of the Commissioner that the decision was justified."

Section 25(3)
Although I am obliged to give reasons for my decision, Section 25(3) of the FOI Act requires the me to take all reasonable precautions in the course of a review to prevent disclosure of information contained in an exempt record. This means that the extent to which I can describe the records is limited.

The release of a record under the FOI Act is understood, effectively, to be equivalent to its release to the world at large.

Handling of the request by the Council
This is a case in which I consider it appropriate to comment on the approach taken by the Council in dealing with the request at the outset. The decision making was particularly poor. In its decisions, the Council refused access on the basis of a number of sections of the FOI Act, without setting out the reasons why these exemptions applied to the particular records involved. The requirements of section 13(2)(d) of the Act were not complied with. I find it hard to understand why after 18 years of the FOI Act, FOI bodies do not make use of the substantial resources available, including training, the guidelines and templates on the website of the Central Policy Unit of the Department of Public Expenditure and Reform (www.foi.gov.ie) and of this Office (www.oic.ie). Neither the original nor the internal review decision made any reference to the public interest considerations for those exemptions claimed to which it was relevant. Some of the exemptions claimed, in particular, parts of section 40 concerning the financial and economic interests of the State, are clearly not applicable and not aimed at protecting information on the administrative activities of a county council. Some of the redactions claimed originally sought to protect information which one would expect to see published by the Council in the ordinary course, such as information relating to the award of contracts by the Council following tender competitions. I note that the Council revised its position during the course of the review and released more information. However, I am concerned at the amount of resources that this Office had to expend to bring matters to this juncture and at the fact that the internal review carried out by a more senior decision maker did not identify or rectify any of the inadequacies in the original decision.

Analysis and Findings

Section 36(1)(b)
The Council has claimed that section 36(1)(b) applies to redactions of relatively small amounts of information in records 4, 5 and 8. Section 36(1)(b) protects information whose disclosure could reasonably be expected to result in a material financial loss or gain to the person to whom the information relates or could prejudice the competitive position of that person in the conduct of his or her profession or business or otherwise in his or her occupation. The essence of the test in the first part of this section is not the nature of the information but the nature of the harm which might be occasioned by its release. In order for the exemption to apply, it is necessary for the harm and the reasonableness of the expectation that the harm could arise from the release of the information under FOI to be identified.

The Council's position is that the information is commercially sensitive in that it would reveal details of aspects of the business entities in question or of their commercial arrangements with the Council, which could give rise to the harm envisaged by section 36(1)(b). The justification provided by the Council for the application of section 36(1)(b) is weak and is such that I considered finding that refusal of this part of the request had not been justified as required under section 22(12)(b) of the Act. However, I must also be mindful of the position of the third parties to whom the information relates. The standard of proof required in the second part of the sub-section is relatively low in the sense that the test is not whether prejudice is certain to materialise but whether it could do so. Having examined the information at issue, I am satisfied that its release could prejudice the competitive position of that business by revealing information which would not otherwise be known to competitors. I find accordingly.

Section 36(2) provides for the release of information to which section 36(1)(b) is found to apply in certain circumstances. I am satisfied that none of the circumstances identified at section 36(2) arise in this case.

Having found that section 36(1)(b) applies to the information, section 36(3) of the FOI Act requires me to consider whether, on balance, the public interest would be better served by granting than by refusing the request. The Council has not dealt with the public interest in relation to this exemption in its decisions or in its submission to this Office. However, I must address it in this decision. The FOI Act itself recognises the public interest in ensuring the openness and accountability of public bodies as to how they conduct their business. However, section 36(1) itself reflects a public interest in the protection of commercially sensitive information. Having considered the matter, I am satisfied that the public interest in openness and accountability and in the public knowing how the Council carries out its functions is served to some extent by the information already released. This Office takes the view that the FOI Act was designed to increase openness and transparency in the way in which FOI bodies conduct their operations and, in general terms, was not designed as a means by which the operation of private enterprise would be opened up to scrutiny. In the circumstances of this case, I find that, on balance, the public interest would not be better served by the release of the small amount of information to which I have found section 36(1)(b) applies.

Section 30
Section 30(1)(a) of the FOI Act provides for the refusal of access to the record where its release could reasonably be expected to prejudice the effectiveness of tests, examinations, investigations, inquiries or audits conducted by or on behalf of an FOI body or the procedures or the methods employed for the conduct thereof. Section 30(1)(b) provides for the refusal of a request if access to the record could reasonably be expected to have a significant, adverse effect on the performance by an FOI body of any of its functions relating to management (including industrial relations and management of its staff). Section 30(1)(c) provides for refusal of access to a record where its release 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. Section 30(2) provides that this exemption does not apply if the public interest would, on balance, be better served by granting than by refusing the request.

Sections 30(1)(a) and 30(1)(b) are harm based exemptions. When an FOI body seeks to rely on these exemptions, it must firstly identify the potential harm to the functions covered by the exemption that might arise from disclosure and, having identified that harm, consider the reasonableness of any expectation that the harm will occur. The test of whether the expectation is reasonable is not concerned with the question of probabilities or possibilities; it is concerned with whether or not the FOI body's expectation is reasonable.

As regards section 30(1)(c), it does not contain a harm test and it is sufficient that access to the record concerned could reasonably be expected to disclose negotiation positions, plans etc.

The Council has claimed that section 30(1)(b) applies to six of the redactions, section 30(1)(a) to one redaction and section 30(1)(c) to three redactions, as set out in the table above. The information in record 5 for which section 30(1)(c) has been claimed under the heading "Labour Court Recommendation" relates to the implementation of a Labour Court Recommendation(LCR). The actual determination by the Labour Court is available to the public on its website(www.workplacerelations.ie). Having examined the redacted information, I accept that it discloses positions taken by the Council in negotiations with the parties on the implementation of the LCR and find that section 30(1)(c) applies. I find that section 30(1)(c) does not apply to the information for which it has been claimed in records 2 and 3 as this information does not disclose positions taken in negotiations.

The information for which section 30(1)(a) has been claimed in record 8 relates to "Housing Repairs". The Council has stated that it is highly sensitive and relates to an examination /inquiry into the housing repair function. No further details have been given; neither has the harm that would arise to the inquiry been identified. As I can see nothing in the Council's submissions or in the content of this part of the record to justify a claim for the application of section 30(1)(a), I am not satisfied that its release would give rise to the harm envisaged and I find that section 30(1)(a) does not apply.

The information for which section 30(1)(b) has been claimed relates to various staffing and industrial relations issues for the Council. In order for the application of section 30(1)(b) to be justified, the Council must demonstrate a significant, adverse effect from the release of the information. I have examined the information at issue. Given its general nature of the information and the extent to which parts in records 1, 2, 3 and 8 (Housing Repairs) are already in the public domain, I cannot see how the Council's claims of significant adverse effect are justified in its submissions. I find that the application of section 30(1)(b) has not been justified in respect of the information for which it has been claimed in records 1, 2, 3 and 8 (Housing Repairs).

I am satisfied from its content and the context involved that release of the information for which section 30(1)(b) has been claimed in record 7 could reasonably be expected to give rise to the harm envisaged and I find that section 30(1)(b) applies to the redacted parts of record 7 .

As I have already found that section 30(1)(c) applies to the information in record 5, I do not need to address the application of section 30(1)(b) to the same information.

Section 30(2) requires me to consider whether, on balance, the public interest would be better served by granting than by refusing access to the records at issue. As stated above, there is no harm test in Section 30(1)(c). However, in considering whether the public interest would be better served by granting than by refusing the request, the question of whether a harm might arise from release may be taken into account.

The FOI Act itself recognises a public interest in ensuring the openness and accountability of public bodies, regarding how they conduct their business. The FOI Act further recognises the public interest in persons being able to exercise their rights under the FOI Act. However, where the release of the record discloses positions taken for the purposes of negotiations which could reasonably be expected to prejudice current or future negotiations or cause some other harm, then this is a public interest factor weighing in favour of refusing the request.

In relation to the information to which section 30(1)(b) and section 30(1)(c) have been found to apply, the Council has identified potential impact on industrial relations issues and on future negotiations. I am satisfied that the public interest is served to some extent by the information which has been released and I find that on balance the public interest would not be better served by release of the information to which section 30(1)(b) and section 30(1)(c) apply. I find accordingly.

Section 29
Section 29(1) provides that (a) an FOI body may refuse to grant a request if the record concerned contains matter relating to the deliberative process of an FOI body and (b) the granting of the request would be contrary to the public interest. For section 29(1)(a) to apply, the record must contain matter relating to the deliberative process and the process must be the deliberative process of an FOI body. Secondly, section 29(2) provides that section 29(1) does not apply in certain circumstances. For example, section 29(2)(b) provides that section 29(1) does not apply to a record in so far as it contains factual information. The exemption is subject to a public interest test and the public interest test is stronger than the public interest test in other provisions of the Act - it must be shown that the granting of the request would be contrary to the public interest.

A deliberative process may be described as a thinking process which informs decision making in FOI bodies. It involves the gathering of information from a variety of sources and weighing or considering carefully all of the information and facts obtained with a view to making a decision or reflecting upon the reasons for or against a particular choice. Thus, it involves the consideration of various matters with a view to making a decision on a particular matter. It would, for example, include some weighing up or evaluation of competing options or the consideration of proposals or courses of action.

The Council has claimed section 29(1)(a) applies to eight of the redactions as set out above. As I have already found that other exemptions apply to the information in records 5 and 7, I do not need to deal with the claim for section 29(1)(a) on these.

Therefore, I am only dealing with the application of section 29(1)(a) to the information for which it has been claimed in records 1, 2, 3 and 8. The information generally refers to ongoing matters under consideration by the Council and in some cases together with other FOI bodies. I am not at all sure that the information for which section 29(1)(a) is claimed can be said to relate to the deliberative process. In any event, in order for section 29(1) to apply, the Council must also show that granting the request would be contrary to the public interest. Having examined the content of the records at issue and the submissions of the Council, I am satisfied that, even if the information was determined to relate to the deliberative process, the Council has not demonstrated how its release would be contrary to the public interest. I find that the redaction of the information on the basis of section 29(1) has not been justified, and therefore section 29(1) does not apply to the information for which it is claimed in records 1, 2, 3 and 8.

Decision

Having carried out a review under section 22(2) of the Freedom of Information Act 2014, I hereby vary the decision of the Council and find that section 36(1)(b) applies to the information for which it has been claimed in records 4, 5 and 8; I find that section 30(1)(c) applies to the information for which it has been claimed in record 5; I find that section 30(1)(b) applies to the information for which it has been claimed in record 7. I find that none of the other exemptions claimed by the Council apply and direct the release of the redacted information in records 1, 2, 3 and 8 which has not been found to be exempt.

Right of Appeal

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.

Elizabeth Dolan
Senior Investigator